29 May 2020

South Australia

South Australia has multiple different new laws that affect planning and environment in response to COVID-19.

The principal Act is the COVID-19 Emergency Response Act 2020 (SA) (SA COVID Act) came into effect on 9 April 2020 and was varied on 15 May 2020. The SA COVID Act:

  • empowers the Governor, by regulation, to:
  • extend time limits, terms of appointment or any matter under an Act or law, limited to a maximum period of 6 months;
  • suspend or modify requirements under an Act/law/instrument, relating to the preparation, signing, witnessing, attestation, certification, stamping or other treatment of any document.
  • allows electronic service of notices;
  • allows meetings required under statute to occur via audio-visual or other means.

There are some provisions of note in the SA COVID Act which are not found in the COVID reform responses of other jurisdictions:

  • An immunity from liability for any acts or omissions of the SA Government related to a power or function under the Act or directions in accordance with the Act.
  • Reports or other documents to be tabled in both Houses of Parliament can now be delivered to the President of the Legislative Council or the Speaker of the House of Assembly, then published on a website and distributed to each member of both Houses.
  • Oversight by the Public Works Committee is waived for ‘prescribed public works’, which would normally provide oversight and reporting for investment of amounts exceeding $4,000,000. ‘Prescribed public works’ is defined as a public work that is necessary as a result of circumstances brought about by the COVID-19 pandemic (or as a result of any measures taken to address the COVID-19 pandemic) or to provide economic stimulus during and after the COVID-19 pandemic.

The COVID-19 Emergency Response (Further Measures) Amendment Act 2020 was assented to on 15 May 2020 and provides for amendments to:

  • the Planning, Development and Infrastructure Act 2016: shortening the timeframe under which Councils can provide a report on a Crown development matter received by the Development Assessment Commission relevant to their local government area, before it is assumed council doesn’t intend to report on the matter (from 4 weeks to 15 business days);
  • the Development Act 1993 (SA):
    • removing the concurrence role of council’s for development that does not comply with a Development Plan;
    • reducing the timeframe for a council to provide a report on Crown development or public infrastructure within their area from two months to 15 business days; and
    • increasing the trigger for public notification of construction work for Crown development and public infrastructure from $4 million to $10 million; and
  • the National Electricity (South Australia) Act 1996 (SA), empowering the Governor to, for the purpose of protecting the reliability and security of the South Australian power system, make regulations modifying the operation of the rules under the National Electricity Law (insofar as they apply as part of the law of South Australia).

The Local Government (Public Health Emergency) Amendment Act 2020, assented to on 26 March 2020, gives a broad power to the Local Government Minister to vary or suspend (by Gazette) the operation of the Local Government Act where:

  • a public health emergency has been declared; and
  • the Minister is satisfied that the variation or suspension of the specified provisions is reasonably necessary as a result of the emergency.
  • The Minister has first consulted with the local government association before making the notice.

The power will enable alterations to council processes, but cannot restrict a council’s power to impose rates or charges. The power expires on 31 December 2021, however a review is to occur 6 months prior to that date.

The Development (Public Health Emergency) Variation Regulations 2020 provide for:

  • variation of the powers and timeframes for referral agencies in development applications;
  • enables flexible opening hours and loading /unloading times;
  • removal of the requirement for a Development Assessment Commission report for development, applicable until 30 Sept 2020.

Non-COVID related environmental regulation reforms

  • Genetically Modified Crops Management (Designated Area) Amendment Act 2020 (SA), assented to on 15 May 2020, this Act amends the  Genetically Modified Crops Management Act 2004 (SA) to lift the Genetically Modified (GM) food crops moratorium and allow GM to be grown on mainland South Australia. Local councils have a time-limited ability to apply to be a GM crop cultivation free area, and the moratorium will remain on Kangaroo Island.

Courts and hearings: All public meetings for Environmental Impact Statements and Public Environment Reports can occur online and allows for public attendance at those hearings.

All impacts relevant to courts in South Australia can be found here. In general court matters are to be dealt with via email via telephone conference and only in person if necessary, for example for urgent matters where there has not been time for the parties to agree a position or for civil matters with limitations on time for the hearing.

The Court has notified that, from Monday 1 June 2020, all listing practices, including settlement conferences, before the District Court will return to normal.