LAW 7178 - Planning Law

North Terrace Campus - Semester 2 - 2019

The focus of this subject is upon the control of land use and development under the South Australian planning system. It commences with an examination of the historical evolution of the SA planning system and then considers the nature of the planning procedures under the Development Act 1993 and the controls imposed under that act. The role and responsibilities of planning authorities and the Courts in the planning system and the purpose and influence of case law will also be considered together with the nature of public involvement within the planning system.The course will also consider the role the statutory planning controls play in the control of government development, major projects and infrastructure proposals and the integration of the development assessment system through the statutory referral process with other statutory assessment and approval processes such as the Environment Protection Act,1993

  • General Course Information
    Course Details
    Course Code LAW 7178
    Course Planning Law
    Coordinating Unit Adelaide Law School
    Term Semester 2
    Level Postgraduate Coursework
    Location/s North Terrace Campus
    Units 3
    Contact Up to 2 hours per week
    Available for Study Abroad and Exchange Y
    Course Description The focus of this subject is upon the control of land use and development under the South Australian planning system. It commences with an examination of the historical evolution of the SA planning system and then considers the nature of the planning procedures under the Development Act 1993 and the controls imposed under that act. The role and responsibilities of planning authorities and the Courts in the planning system and the purpose and influence of case law will also be considered together with the nature of public involvement within the planning system.The course will also consider the role the statutory planning controls play in the control of government development, major projects and infrastructure proposals and the integration of the development assessment system through the statutory referral process with other statutory assessment and approval processes such as the Environment Protection Act,1993
    Course Staff

    Course Coordinator: Mr Paul Leadbeter

    The course coordinator is Paul Leadbeter who will be responsible for conducting all the seminars in this course.
    Any queries about the course should be directed to Paul Leadbeter whose contact details are as follows: paul.leadbeter@adelaide.edu.au

    Phone: 8313 4441
    Room 227, Ligertwood Building
    Further information about Paul Leadbeter can be found at: http://www.adelaide.edu.au/directory/paul.leadbeter

    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

  • Learning Outcomes
    Course Learning Outcomes

    On successful completion of this course, students will be able to:

    1. Demonstrate knowledge of the basic elements of the SA  planning system's regulatory and policy components. 
    2. Demonstrate knowledge of basic principles of land use planning legal systems.
    3. Demonstrate knowledge of South Australian planning law, appeal and enforcement processes.
    4. Analyse court determinations on planning matters and their implications for future development proposals.
    5. Identify a range of legal and policy issues arising out of a development proposal. 
    6. Independently undertake self-directed legal research , including through the use of online technologies.
    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Deep discipline knowledge
    • informed and infused by cutting edge research, scaffolded throughout their program of studies
    • acquired from personal interaction with research active educators, from year 1
    • accredited or validated against national or international standards (for relevant programs)
    1,2
    Critical thinking and problem solving
    • steeped in research methods and rigor
    • based on empirical evidence and the scientific approach to knowledge development
    • demonstrated through appropriate and relevant assessment
    4
    Teamwork and communication skills
    • developed from, with, and via the SGDE
    • honed through assessment and practice throughout the program of studies
    • encouraged and valued in all aspects of learning
    5
    Career and leadership readiness
    • technology savvy
    • professional and, where relevant, fully accredited
    • forward thinking and well informed
    • tested and validated by work based experiences
    3
    Intercultural and ethical competency
    • adept at operating in other cultures
    • comfortable with different nationalities and social contexts
    • able to determine and contribute to desirable social outcomes
    • demonstrated by study abroad or with an understanding of indigenous knowledges
    5
    Self-awareness and emotional intelligence
    • a capacity for self-reflection and a willingness to engage in self-appraisal
    • open to objective and constructive feedback from supervisors and peers
    • able to negotiate difficult social situations, defuse conflict and engage positively in purposeful debate
    6
  • Learning Resources
    Required Resources
    There are no required textbooks. Planning law and policy in South Australia is, at the time of preparing this profile, the subject of significant statutory reforms. A new statute , the Planning, Development and Infrastructure Act, 2016 has been passed by the state parliament and is to come into operation over a 3 to 5 year time period. This is making significant changes to the system of land use planning in South Australia.  Normally students undertaking this course would need to have an up to date copy of the S.A. Development Act, 1993 and the Development Regulations, 2008. There are extensive references to those statutory documents throughout the course.It is suggested that students wait until the Course commences before obtaining those pieces of legislation so that we can provide them with an up to date advice on what legislation to obtain.
    All state government legislation can be accessed through the SA parliament website and some others. The links are set out below.
    Recommended Resources
    Text Book(s)
    There is no recommended text for the course.  A seminar outline and recommended reading for those wishing to explore the topics further and reading materials for each seminar will be available on line through MyUni.

    References
    Other references you may find useful are:

    Stein, Leslie A, Principles of Planning Law, Oxford University Press, 2008
    Bates, Gerry, Environmental Law in Australia 9th ed., Lexis Nexis Butterworths, 2016
    DE Fisher, Australian Environmental Law (2nd ed, Thomson Reuters, 2010).
    Gurran, Nicole Australian Urban Land Use Planning- Introducing Statutory Planning Practice in New South Wales, Sydney University Press, 2007

    Godden, Lee & Peel, Jacqueline, Environmental Law: Scientific,Policy and Regulatory dimensions, Oxford University Press, 2009

    The Australian Journals most frequently referred to in this area include:

    -Environmental & Planning Law Journal (EPLJ), Thomson Reuters

    -Local Government Law Journal (LGLJ), Thomson Reuters

    -The Australasian Journal of Natural Resources Law & Policy, University of New South Wales.

    A publication in South Australia in the area of planning law is “Planning Law SA” which is a looseleaf service published by Presidian Legal Publications and for whom the consulting editor is an Adelaide barrister, Brian Hayes QC. This publication is basically an annotated version of the Development Act 1993 and the Development Regulations under that Act.It is an excellent resource and there is a copy held on reserve in the Law Library.

    There is also a looseleaf publication “Planning Law in Australia” published by Thomson Reuters ( general editor: Glen McLeod-SA State editor: Paul Leadbeter) which contains an analysis of relevant land use planning laws in all states and territories including South Australia as well as some material on laws relating to built heritage and environmental authorisation processes.

    Environmental cases decided in the State Supreme Courts, the Federal Court and the High Court are reported in the Local Government and Environment Reports of Australia (LGERA). All significant decisions of the SA Environment, Resources and Development Court (ERDC) and the SA Supreme Court (where they deal with environmental issues) can be found in Austlii and on the SA courts'website.
    Online Learning
    All reading lists and connections through to the listed materials and readings will be available on MyUni. Announcements during the semester will also be posted on MyUni and emailed to all students listed in the course.

    Decisions of the SA Environment Resources and Development court are available online as follows:

    -All decisions after 2003 are on the Court's web site:

    http://www.courts.sa.gov.au/courts/environment/judgments/content.html; and

    -Most decisions from 1997 are on Austlii:

    http://www.austlii.edu.au/au/cases/sa/SAERDC/


    The Austlii site contains most legislation.

    Austlii: http://www.austlii.edu.au/

    It can be accessed through the Law Library’s website. Past experience suggests that Austlii is not always up to date with legislation. The alternative (and actually my preferred site) is the SA Parliament's website for South Australian legislation: www.legislation.sa.gov.au
  • Learning & Teaching Activities
    Learning & Teaching Modes
    This course will be taught in a series of  two hour time slots using a mixture of lecture format and seminars at which students will be required to discuss, debate and defend their analysis of the relevant material set in the course readings.  This discussion will be prompted by questions posed in each week’s reading materials. Depending on the level of interest in the class it may be possible to undertake at least one site visit within the CBD area to look at a contentious development site and observe those matters which the court and parties were required to view and consider as part of the resolution of the planning dispute.
    Workload

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    Contact time: attend 2 hours of classes each week ( held as a block of 2 hours weekly and comprising a mixture of lecture and seminar format with possible site visit). This amounts to 24 hours of formal class time across the semester.

    Preparation time: In addition to attending formal classes it is anticipated that students will do substantial independent work to prepare for classes and to complete the course assignments.
    Learning Activities Summary
    In this course it is intended to cover the following material:

     Week

     Lecture Topic

     Discussion Topic

     1

     Nature and Role of Planning law

     Familiarisation with Development Act & development regulations

     2

     The Concept of Development and Existing Use rights

     What activities constitute Development? What activities are    exempted?

     3

     Role of Relevant Authorities

     Responsibilities of Development Assessment Panels and planning  staff reporting to them

     4

     Plans and the Policy development process

     Relationship between planning policy and other government  policy initiatives & legal responsibilities

     5

     The Development Assessment process

     Integrated assessment processes-linking decvelopment approvals  with other authorisation processes

     6         

     Opportunities for public input in the planning process                                                                                   

      What matters are relevant to the planning decision making  process?                                                                                           

     Conditions on Planning Approvals

     Amenity,need and the public interest

     8

     Special Approval Processes

     The role of the Commonwealth Environment Protection and  Biodiversity Act 1999

     

     MID- SEMESTER BREAK

     

     9

     Planning and Adaptation for Climate Change

     Water management and planning

     10

     Heritage Protection and Planning

     Case study of Major Project

     11

     Providing for infrastructure frameworks under the planning system

     Development contributions and Land Management Agreenments

    12 

     Appeals and Enforcement of Planning Laws 

     Reform

                          
    In the past five years land use planning law has been very topical (and at times controversial) in South Australia as a consequence of the release in December 2014 of the Expert Panel on Planning Reform's report and recommendations on changes to the South Australian system. Most of those reforms have been incorporated into new legislation, the Planning, Development and Infrastructure Act 2016 which will gradually come into operation over a period of 3 to 5 years, and they will be considered as part of this course.
    Specific Course Requirements
    There are no requirements specific to this course.A general interest and some understanding of the role and function of the state and federal goverments and their bureaucracies and the processes for the enactment of legislation and policy and the role and function of local government in South Australia would be helpful although not essential. Students who have a general interest in urban and built environments would also find that a useful asset in this course.
  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary
    Assessment Task Task Type Due Weighting Redeemable Length Learning Outcome
    Essay Individual

    5pm, Monday 4 November 2019

    50% No 3000 words 1-6
    Decision Analysis Individual 5pm, Monday 12 August 2019 25% No 2000 words 3,4
    Problem Scenario Individual 5pm Tuesday 1 October 2019 25% No 2000 words 1,2,3,5
    Assessment Related Requirements
    When undertaking an assessment task, students are to be assessed according to whether they are law or non-law graduates respectively. Where the nature of the task involves the exercise of skills that law graduates can be expected to have practised or refined over a longer period or to a greater degree than their non-law counterparts, an assessor may legitimately expect a higher standard of performance from the law graduates in the course.

    Students can redeem failed or unsatisfactory work by submitting additional work after consultation with and in a format approved by the lecturer. To be entitled to do this the student must have received a minimum grade of 40% for the work they are seeking to redeem.
    Assessment Detail
    (i) Research Essay (50% of the final result)
    This aspect of the assessment will provide students with feedback regarding their level of understanding of the course material and their research, written communication and critical thinking skills. Students must submit a 3000-word essay on a topic to be selected from a list of topics provided by the lecturer at the commencement of the course.

    The deadline for submission is Monday 4 November 2019, at 5pm.

    Please note the requirements and penalties re late submissions and papers which exceed the word limits which are set out in 'Submission' below.

    Assessment Criteria
    • level of insight and innovative thought
    • depth of analysis and level of critical examination of the issues raised
    • clarity of expression
    • logical planning and sequence
    • evidence of comprehensive research and consideration of the relevant literature
    • demonstrated understanding of the comparative law method
    • demonstrated understanding of relevant legal materials
    • correct application of relevant material
    • overall presentation, including correct grammar, spelling and punctuation
    • use of resources in formulating the paper including proper acknowledgment and correct referencing

    Fail 0 – 49
    Does not develop coherent and rational arguments; demonstrates fundamental errors of understanding of key legal principles and concepts; little evidence of research to support arguments; demonstrates limited analytical and evaluative skills
    Pass 50 – 64
    Demonstrates a basic understanding of the relevant legal material eg legislation and cases and development policies ; applies core texts and materials; arguments rational and coherent; adheres to referencing requirements
    Credit 65 – 74
    Demonstrates a high level of understanding of the relevant legal materials; has a thorough understanding of course materials; arguments are well constructed with appropriate supporting referencing; demonstrates some critical legal thinking and evaluative skills
    Distinction 75 – 84
    A very high standard of understanding of the relevant legal materials with some original and sophisticated perspectives included; paper demonstrates high level insight; broad ranging research undertaken; evidence of high level of critical thinking; well developed analytical and evaluative skills
    High Distinction 85 - 100
    Outstanding level of understanding and interpretation demonstrated; arguments are compelling and well supported by relevant authorities; student has undertaken broad ranging research and demonstrated original and sophisticated thinking especially in relation to difficult areas of legal application; highly developed written communication skills demonstrated.

    (b) An analysis of a Court's written decision involving a planning dispute with a word limit of 2,000 words. This will require students to read a nominated court decision and answer a number of questions about the decision and the implications of that decision for future development in the locality. This will be worth 25% of student's final mark.
    It must be submitted by Monday 12 August 2019 at 5pm.

    (c) An answer to a problem scenario with a word limit of 2,000 words. In this assignment students will be presented with a hypothetical  factual scenario  relating to an actual site and area in South Australia. They will be required to identify the site in the development plan and the relevant planning policies. There will also be issues related to the interpretation of provisions in the legislation and previous court determinations and their application to that problem.  This is worth 25% of a student's final grade.
    It must be submitted by Tuesday 1 October 2019 by 5pm.
    Submission
    1. Students must retain a copy of all assignments submitted.

    2.All assignments must be submitted  electronically through the Turnitin portal and will be marked using an iPad. Comments will be both a mixture of typed and verbal feedback which students will be able to retrieve through Turnitin. Details of the process for electronic submission( through MyUni ) will be provided during the early part of the semester.


    3. The Law School’s standard penalties in relation to late submission and assignments exceeding the word limit apply to Planning Law. The penalties are:

    (a) for late submissions: Submission penalties of 5%of the total mark possible will be deducted for every 24 hours or part thereof that it is late,including each day on a weekend. For example,an essay graded 63% will have 5% deducted if it is one hour late, for a final grade of 58%, 10% if it is 25 hours late,etc.;

    (b) for assignments over the word length: 5% for every 100 words over 3,300 words( in the case of the essay) or 1,650 words ( in the case of the other 2 assignments). Those limits include a 10% margin over the base word limit for each assignment.

    All written work in the Law School is required to comply with the Australian Guide to Legal Citation available at : http//www.law.adelaide.edu.au/library/research/.
    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Courses for which a result of conceded pass has been obtained may not be presented towards the degree requirements for the Bachelor of Laws or the Honours Degree of Bachelor of Laws programs, or any postgraduate law program, nor to satisfy prerequisite requirements within any law course.

    Final results for this course will be made available through Access Adelaide.

    Finality of Assessment Grades

    Students are advised that Course Coordinators will not enter into negotiations of any kind with any student regarding changes to their grades. It is irrelevant, in any given circumstance, that only a minimal number of additional marks are required to inflate a student’s grade for any individual assessment item or course as a whole. Pursuant to the University’s Assessment for Coursework Programs Policyand the Adelaide Law School Assessment Policies and Procedures, grades may only be varied through the appropriate channels for academic review (such as an official re-mark).

    Moderation
    In accordance with the University’s Assessment for Coursework Programs Policy, course coordinators ‘ensure that appropriate marking guidelines and cross-marking moderation processes across markers are in place’ in each course. Procedures adopted by Adelaide Law School to ensure consistency of marking in courses with multiple markers include:
    • assurance of the qualifications of markers, and their knowledge of the content covered in each course;
    • detailed marking guidelines and assessment rubrics to assist in the marking of items of assessment;
    • sharing of example marked assessments at various grade bands across markers;
    • reviewing of selected marked assessments from each marker by the course coordinator;
    • comparison of the marks and their distribution across markers;
    • automatic double-marking of all interim assessment receiving a fail grade, and of final assessments where a student’s overall result is a fail grade;
    • the availability of re-marking of assessments in accordance with Adelaide Law School’s Assessment Policies and Procedures.

    Approval of Results by Board of Examiners
    Students are reminded that all assessment results are subject to approval (and possible moderation/change) by the Law School’s Board of Examiners. Assessment results at the University are not scaled. Under the Assessment for Coursework Programs Policy, students are assessed ‘by reference to their performance against pre-determined criteria and standards … and not by ranking against the performance of the student cohort in the course’. However, under that same policy, the Board of Examiners (as the relevant Assessment Review Committee for courses at Adelaide Law School) is required to ‘ensure comparability of standards and consistency’ in assessment. On occasions, the Board of Examiners will form the view that some moderation is required to ensure the comparability of standards and consistency across courses and years, and accordingly provide fairness to all law students. All assessment results are therefore subject to approval (and possible change) until confirmed by the Board of Examiners and posted on Access Adelaide at the end of each semester.
  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

  • Student Support
    The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the University of Adelaide.

    The centre offers practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

    Lex Salus Program
    Lex Salus (law and wellbeing) is an initiative of the Adelaide Law School aimed at destigmatising mental health issues; promoting physical, mental and emotional wellness; building a strong community of staff and students; and celebrating diversity within the school. It also seeks to promote wellness within the legal profession, through the involvement of the Chief Justice of the Supreme Court of South Australia, the Honourable Chris Kourakis, as the official Patron of the program.

    Students can participate in the Lex Salus program by attending barbecue lunches, pancake breakfasts, knitting and crochet circles, seminars, guest speakers, conferences and other activities. Our Facebook page, website and regular all-student emails promote upcoming events, and have tips and information on wellness.

    Our Lex Salus YouTube channel also includes videos on topics like managing stress, and interviews with LGBTQ lawyers and their supporters which celebrate diversity and individuality. Students who commit to 10 hours of volunteering with Lex Salus in one year can have their service recognised on their academic transcript and through a thank you morning tea with the Chief Justice and law school staff.

    Student Life Counselling Support
    The University’s Student Life Counselling Support service provides free and confidential service to all enrolled students. We encourage you to contact the Student Life Counselling Support service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life.
  • Policies & Guidelines

    This section contains links to relevant assessment-related policies and guidelines - all university policies.

    Academic Honesty
    Academic dishonesty is a serious act of academic misconduct. All students must be familiar with the University’s Academic Honesty Policy.

    Academic dishonesty is a serious matter and is treated as such by the Law School and the University. Academic dishonesty (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to admit a person to practice as a legal practitioner in South Australia.

    Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.
  • Fraud Awareness

    Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student’s disciplinary procedures.

The University of Adelaide is committed to regular reviews of the courses and programs it offers to students. The University of Adelaide therefore reserves the right to discontinue or vary programs and courses without notice. Please read the important information contained in the disclaimer.