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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Development (Private Certification) Amendment
Bill 2012
A BILL FOR
An Act to amend the Development
Act 1993.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Development
Act 1993
4Amendment of section 35—Special provisions
relating to assessment against Development Plan
5Insertion of
section 56C
56CDevelopment
Plan assessment audits
6Amendment of section
89—Preliminary
7Amendment of section 93—Authority to be
advised of certain matters
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Development (Private Certification)
Amendment Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Development
Act 1993
4—Amendment
of section 35—Special provisions relating to assessment against
Development Plan
Section 35—after subsection (5) insert:
(6) Subject to this
Act, a relevant authority must accept that a proposed development complies with
the provisions of the appropriate development plan to the extent that such
compliance is certified by a private certifier.
Note—
1 See section 89 with respect to certificates given by private
certifiers.
After section 56B insert:
56C—Development Plan assessment
audits
development assessment auditor means—
(a) a person of a class prescribed by the regulations; or
(b) a person employed or engaged by a body prescribed by the regulations
who holds qualifications prescribed by the regulations;
relevant Development Plan assessment means the assessment of
a proposed development of a prescribed kind against the provisions of the
appropriate Development Plan under this Part.
(2) Any council or private certifier undertaking relevant Development Plan
assessments must have its, his or her activities in relation to such assessments
audited by a development assessment auditor in accordance with the requirements
of this section.
(3) The purposes of an audit under this section are—
(a) to check whether the processes and procedures associated with relevant
Development Plan assessments, and with the granting of any relevant Development
Plan consents, have been undertaken in accordance with the requirements of this
Act (including requirements prescribed by the regulations) and, in particular,
whether the matters prescribed by the regulations have been satisfied;
and
(b) to examine and, if appropriate, report on any other aspect of the work
of the council or the private certifier prescribed by the regulations for the
purposes of this section.
(4) The first audit under this section must be completed as
follows:
(a) in relation to a council—within the prescribed period after the
commencement of this section;
(b) in relation to a private certifier—
(i) if the private certifier is carrying on business as a private
certifier on the commencement of this section—within the prescribed period
after the commencement of this section;
(ii) if the private certifier commences business as a private certifier
after the commencement of this section—within the prescribed period after
the date on which the private certifier commences business.
(5) Thereafter, a council or private certifier must ensure that an audit
is completed at least once in every prescribed period.
(6) A private
certifier must, when renewing any registration as a private certifier under the
regulations (including in a case where the private certifier is only required to
pay an annual registration fee and lodge an annual return), provide, in a manner
determined by the Minister, evidence of compliance with this section (insofar as
may be relevant).
(7) It will be grounds for the cancellation of the registration of a
private certifier if—
(a) the private certifier has not complied with
subsection (6);
or
(b) the registration authority considers that the private certifier has
not adequately addressed any matter identified by an auditor during the course
of an audit under this section.
(8) An audit conducted under this section will relate to an antecedent
period, not exceeding the prescribed period, determined to be appropriate by the
auditor.
(9) An audit under this section may be conducted by—
(a) analysing processes and procedures that have been employed by the
council or private certifier to ensure compliance with the requirements of this
Act; and
(b) examining random or selective samples of documents or other records to
check on processes and procedures or to ascertain any other relevant matter;
and
(c) conducting interviews of persons who may be able to provide
information relevant to the audit; and
(d) taking such other steps or making such other inquiries as the auditor
thinks fit.
(10) An auditor must, before finalising a report for the purposes of this
section, give a copy of the report to the council or private certifier and allow
a reasonable time for the council or private certifier to provide a response
with a view to correcting any error of fact.
(11) An auditor
must report to the Minister any contravention or failure on the part of a
council or private certifier (as the case may be) to comply with the
requirements of this Act (including those prescribed by the regulations) or the
appropriate Development Plan in a significant respect or to a significant degree
in undertaking relevant Development Plan assessments identified by the auditor
during the course of an audit.
(12) If an auditor
provides a report to the Minister under
subsection (11),
the Minister may, after taking such action as the Minister thinks
fit—
(a) make
recommendations to the council or private certifier (as the case may
be);
(b) if the Minister
considers that the council or private certifier (as the case may be) has
contravened or failed to comply with the requirements of this Act (including
those prescribed by the regulations) or the appropriate Development Plan in a
significant respect or to a significant degree, give directions to the council
or private certifier to rectify the matter, or to take specified action with a
view to preventing a recurrence of any act, failure or irregularity;
(c) in the case of
a private certifier—disqualify the person from acting as a private
certifier by notice in the Gazette.
(13) The Minister may, in taking action under
subsection (12),
if the Minister thinks fit, appoint an investigator or investigators to carry
out an investigation under section 45A as if a ground had been made out for
the purposes of subsection (1) of that section (and may then act under
subsection (12)(a),
(b) or
(c) on the basis of a
report presented to the Minister at the conclusion of the
investigation).
(14) The Minister must, before taking action under
subsection (12),
give the council or private certifier a reasonable opportunity to make
submissions in relation to the matter.
(a) the Minister makes a recommendation to a council or private certifier
under
subsection (12)(a);
and
(b) the Minister subsequently considers that the council or private
certifier has not, within a reasonable period, taken appropriate action in view
of the recommendation,
the Minister may, after consultation with the council or private certifier,
give directions to the council or private certifier.
(16) A council or private certifier must comply with a direction under
subsection (12)
or
(15).
Penalty: Division 4 fine.
(17) No action in defamation lies in respect of the contents of a report
under this section.
(18) An auditor must, in acting under this section, take into account any
guidelines issued by the Minister for the purposes of this section.
(19) A person must not act as a development assessment auditor in relation
to a particular council or private certifier if he or she is disqualified from
so acting under the regulations.
(20) A regulation cannot be made for the purposes of this section unless
the Minister has given the LGA notice of the proposal to make a regulation under
this section and given consideration to any submission made by the LGA within a
period (of between 3 and 6 weeks) specified by the Minister.
(21) Nothing in this section limits or affects the operation
of—
(a) section 45A; or
(b) Chapter 13 Part 3 of the Local
Government Act 1999,
(but subject to any direction under this or any other provision, including
under the Local
Government Act 1999, a council is not prevented from acting under
this Act on account of a failure to ensure that an audit is conducted in
accordance with the requirements of this section).
(22) Nothing in this section limits or affects any other provision made by
or under this Act with respect to the registration or activities of private
certifiers.
6—Amendment
of section 89—Preliminary
Section 89(3)—delete subsection (3)
7—Amendment
of section 93—Authority to be advised of certain
matters
Section 93(1)(b)—delete "any aspect of building work" and
substitute:
a proposed development or a particular aspect of a proposed
development