Making sense of the draft Planning and Design Code — Part Two — Mapping Errors and Primary Industry Land Uses

14 October 2019

This Paper is Part Two of our series on Phases 2 and 3 of the draft Planning and Design Code (“the Code”) which is currently subject to public consultation.

Our Part One Paper can be located  here.

In this Part Two Paper, we focus on:

• mapping errors;
• primary industry land uses

The first topic is important given the amount of discussion that has arisen from the erratum released by DPTI concerning mapping errors and the impact that some mapping errors may have on individual land parcels.

The second topic has been chosen because of the consultation deadline for Phase 2 council areas, 29 November 2019.

Over coming weeks, we will release further Papers on other key areas of the Code, including industrial and employment land uses, low density residential, tourism, medium and high density residential, commercial and retail uses.

Mapping Errors

Our initial observation is that the manner in which Zones within both Phases of the Code are structured, highlights the importance of related Zone mapping and GIS mapping.

Each Zone is subject to several “overlays” which must be carefully considered in determining the nature of a proposed development and performance assessments.  All Zone boundaries in all council areas must be carefully reviewed, particularly in light of mapping errors recently identified by DPTI.   Additional errors that are identified should be reported to DPTI to be addressed before commencement of the Code.

Mapping errors also raise concerns for councils beyond planning assessment implications. Members of the public who have reviewed the Code Consultation Map Viewer may discover that the Zone which they expected a property to be in has changed since they last reviewed it.  It would, therefore, be helpful if the erratum were uploaded to the SA Planning Portal.

We understand that some councils have questioned the “legality” of changes made to the Code in between its release in draft for public consultation and the final version being adopted by the Minister.

These changes can be accommodated through sections 73(7), 73(8), 73(10) and 73(11) of the Planning, Development and Infrastructure Act 2016 (“the PDI Act”) which provide that:

• where, after consultation on a draft Code, amendment occurs,¹ the designated entity for a Code amendment (in this case, the State Planning Commission (“the SPC”) must prepare a report to the Minister, containing information on any changes that it considers should be made to the amendment;
• the report must comply with Practice Direction 2 and be published on the SA Planning Portal;
• the Minister must consider the report and may:
  • consult with the SPC and then;
  • adopt the amendment as outlined in the report; or
  • make alterations to what it outlined in the report and then adopt the amendment; or
  • divide the amendment into separate parts and then adopt one (1) or more of those parts; or
  • determine that the amendment should not proceed.

Section 73 of the PDI Act does not provide any criteria for the nature and extent of alterations that can be made to a Code amendment by the Minister.  This provision is not dissimilar from DPA provisions in sections 25 and 26 of the Development Act 1993 and is, arguably, sufficiently broad to allow for errors to be corrected by the Minister, after consultation is concluded.²

We recommend that if any mapping errors are of considerable concern to any council, that specific advice be sought.

Primary Industry Land Uses

Primary industry land uses include farming, animal husbandry and horticulture.³

Phase 2 of the Code contains the following Zones which have a focus on the abovementioned land uses:

• Rural Zone
• Rural Horticulture Zone
• Rural Intensive Enterprise Zone
• Rural Aquaculture Zone.

It is important to note that the use of the term “Rural” denotes rural or countryside areas as opposed to townships and urban areas.   Accordingly, the Code contains the “Rural Shack Settlement Zone”, “Rural Living Zone” and the “Rural Settlement Zone” which all have a residential land use focus.⁴

The Rural Zones listed above will replace current Primary Production Zones and similar Zones in council Development Plans.

Phase 3 of the Code contains each of the above Zones, plus a “Peri-Urban Zone” which extends from Port Elliot through the Mount Lofty Ranges and around Nuriootpa and Greenock. This Zone encourages farming and horticulture land uses as well as related industry, tourism, retailing and some residential development.

General comments

Generally, we consider the lesser number of rural-type zones from current Development Plans to be a positive initiative.  Primary industry areas often traverse council boundaries and having more consistent Zones with less variations between them (particularly in respect of procedural matters) has potential to provide greater consistency and certainty to persons involved in primary industry.

However, we note that there is limited policy objectives and intent expressed within the Rural Zones  and the Peri-Urban Zone themselves.  Rather, the Zones are heavily reliant upon General Module Policy and area-specific Overlays.  We suggest that each of the Zones would benefit from additional policy statements which differentiate between each Zone and the general modules, to assist in the interpretation of each Zone, particularly for members of the community.

We question the appropriateness of the proposed Peri-Urban Zone and the areas to which it applies.  Whilst, technically, the term “Peri-Urban” can simply mean an area adjacent to a city or urban area, the term can also carry connotations that are counter-productive in that it suggests areas which may be developed for urban residential purposes in the near future. The Peri- Urban Zone covers several major wine producing regions including The Barossa and Adelaide Hills,  many  orchards and other horticultural areas, other food production areas, animal husbandry and farming areas.  Whilst the specific provisions of this Zone recognise and encourage these land uses and discourage land uses that are sensitive to them, and that areas within the Zone are “protected” by the EFPA provisions and overlays5  this detail may not be appreciated by members of the public who may focus on the name of the Zone.  We suggest that alternative names should be considered to highlight the importance of these areas to our State and the primary industry and tourism focus of the Zone.

We also question the use of ‘deemed-to-satisfy’ criteria for performance assessment purposes within the abovementioned Zones.   The manner in which deemed-to-satisfy criteria are expressed could lead to performance-assessed development applications being refused due to a lack of guidance as to what variations are and are not appropriate in a performance assessment.

In terms of each of the Rural Zone variants, we query the need for separate Rural Zones given that the policy expressed in each is very similar.  We suggest that an overarching Rural Zone with a series of subzones, including a Horticulture subzone, an Intensive Enterprise subzone and an Aquaculture subzone, would be more appropriate in that it would further lessen the number of Zones and the duplication of similar planning criteria.   In making this comment, however, we note, with disappointment, that neither of the draft Codes contain subzones and that the addition of subzones may be unlikely at this late stage.

In the notification tables for each Zone, performance assessed development where “the site of the development is adjacent to land in a different zone” must be notified.  This appears to be an overly onerous requirement where the proposed development is primary industry in nature and the adjacent zone is another form of Rural Zone or the Peri-Urban Zone.   We suggest that appropriate exclusions to the notification “trigger”  should  be  considered  to  avoid  needless notification.

Further, where notification tables list “detached dwelling”, the “trigger” is incomplete.   This drafting error must be reviewed and resolved to avoid confusion and, possibly, arguments in the ERD Court over its meaning.

Specific observations – Rural Zones

View the attachment to read our comments.

Specific observations – Peri-Urban Zone

The provisions of this Zone are, in many ways, similar to the Rural Zone and the same issues identified above are present in this Zone.  We emphasise the provisions which we consider to be of critical importance for submissions, here.

Specific observations – Overlays

The heavy reliance on overlays in each of the Rural Zones and the Peri-Urban Zone emphasises the need for each to be carefully considered.  In particular, the Dwelling Excision, Limited Dwelling, Limited Land Division and Technical and Numerical Variation Overlays need to be carefully reviewed for their suitability in each council area.  This is particularly given the lack of subzones in the Code.

In terms of the Dwelling Excision Overlay in particular, councils should carefully review this overlay against Development Plan policies as regional content will be lost upon conversion to the Code.  Dwelling excisions will, under the Overlay, be allowed regardless of when an allotment was created, whether a dwelling already exists or not and whether multiple, ongoing excisions can occur over time.

We note that the 1956 flood mapping of the River Murray Flood Plain is not present in the Code.  The Flood Plain mapping related to the Hazards (Flooding) Overlay appears to be based on the current River Murray Water Protection Area which is mapping created for a different purpose.  The 1956 flood mapping shows the extent of the flood that occurred in this year and is specifically used for flood hazard assessment, rather than water and/or environment protection purposes.  The 1956 flood mapping is crucial to properly assess site constraints and to avoid inappropriate developments occurring in potentially hazardous areas.

 

For further information regarding the draft Code, please contact:

Victoria Shute: vshute@kelledyjones.com.au

David Altmann: answers@developmentanswers.com.au

 

¹ Phases 2 and 3 of the Code are prepared as Code Amendments pursuant to section 73 of the PDI Act. This is because the Code has already been established pursuant to sections 65 and 73 of the PDI Act through the commencement of Phase 1 earlier this year.

² See for example Town of Gawler v Minister for Urban Development and Planning & Ors  [2011] SASC 26. This judgment concerned a Ministerial DPA proposing the rezoning of land from Special Uses Zone to (ultimately) a Neighbourhood Centre Zon After consultation, the DPA was amended to, amongst other things, change a retail floor area cap from 3,800 square metres to 5,900 square metres.  The DPA was challenged on a number of grounds by way of judicial review by the Council.  In determining that the alteration was not unlawful, the Court stated “…(t)he power to alter a Development Plan after consultation does not entitle the Minister to approve a DPA in a form which has the effect of thwarting the process for consultation…This would occur if the proposal which was finally approved involved such a radical change ‘that it could not be said that it was the original proposal that we being approved’”. The Court determined that the change in floor area was not a radical change and was, therefore, lawful.   Whether mapping changes are “radical” changes in the context of the Code amendment is a matter of fact and degree which will need to be considered on the basis of each individual error.  Given the broad extent of the Code amendment and the changes it proposes to make to large areas in the State, it could be argued that mapping errors are, in the context of the overall Code, not ‘radical’ and can be lawfully made after consultation.

³ See the State Planning Reform “Primary Industries Fact Sheet”

⁴ Residential land uses will be the subject of a future Paper to be released over the coming weeks.

⁵ See Peri-Urban Zone DO 2 and PO 1.1