Major Development (and EIA)

The Development Act 1993 (SA) provides for the Planning Minister to be able to take direct control over the assessment of developments of major environmental, social or economic importance by declaring such a development to be a major development. Once such a declaration is made, decision-making process is handled by the Governor (effectively the State Cabinet) with the assessment being undertaken by the proponent and the State department of planning and local government (Planning SA) [s 46].

Once the Minister has made the decision to declare a major development, the decision-making responsibility is taken away from the local council or Development Assessment Commission. The Minister can even 'call-in' a development from a council or DAC at any time prior to a decision being made.

The first step in the assessment of a major development is the Development Assessment Commission develops guidelines for and recommends to the Minister the level of Environmental Impact Assessment (EIA) that should be required for the development. These are:

  • EIS (Environmental Impact Statement) - the most detailed form of assessment which includes rights of public comment and public meetings to explain the development proposal
  • PER (Public Environment Report) - this involves less detailed assessment but includes rights of public comment and public meetings
  • DR (Development Report) - this involves only a description and analysis of general issues surrounding the development and has a shorter public comment period (3 weeks instead of 1 month) and no public meetings

Before making its recommendation to the Minister about the level of assessment and the scope of matters to be dealt with in the assessment, the Development Assessment Commission must seek public submissions through newspaper advertisements.

Once the level and scope of EIA has been set, the proponent prepares an EIS (or PER or DR) which is placed on public exhibition to enable interested members of the community to comment. There is then a process of amendment (if required) before the Minister prepares an 'Assessment Report'. Ultimately, the decision is made by the Governor, whether or not to approve the development and if so, under what conditions. In reaching his or her decision, the Governor is not bound by the Development Plan in the same way that Councils and the DAC are bound (that is, not to make a decision 'seriously at variance' with the Development Plan). This means that zoning restrictions (such as the Hills Face Zone) can be overridden for Major Developments. The only obligation of the Governor towards zoning rules is to 'have regard' to those rules.

Other aspects of the Major Development assessment procedure which differ from 'normal' developments are that there is no legal right for a person making a 'representation' (submission) to be able to speak to that submission at the public meetings. Also, there is no obligation on the Governor to take public submissions into account when making a decision. In fact, the Governor doesn't even have to 'have regard' to these submissions. In practice, all public submissions are 'filtered' through the planning bureaucracy before reaching the political decision-making level. On the other hand, the Governor will have regard to the Planning Strategy for South Australia - a government policy document which is not normally referred to in development assessment as well as Environment Protection Policies under the Environment Protection Act 1993 (SA).

Once a decision has been made, there is no right of appeal by any party against that decision. Also, there is no right to challenge any aspect of the assessment or decision-making process in court, even in relation to a failure on the part of the Government to follow its own laws [Development Avt 1993 (SA) s 48E].

Major Development (and EIA)  :  Last Revised: Thu Jan 5th 2017
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.
Link to sa.gov.au - find what you're looking for

© Legal Services Commission - All Rights Reserved
Funded with the support of the Governments of Australia and South Australia Website by CeRDI