Amendments to Practice Direction 14 - Site Contamination 2021 and the Miscellaneous Technical Enhancement Code Amendment

27 April  2023

In this Alert we summarise the key legal considerations for planners which arise from the amendments to Practice Direction 14 and the Code Amendment.

Practice Direction 14

Clause 11 now has an additional subclause 11(3) as follows:

‘Under section 102(5) of the Act, a relevant authority may reserve any matter that is considered not fundamental to the application.  For sites where there is a low likelihood or site contamination impacting on a proposed development involving a more sensitive land use, including where the proposed development is on a constrained site, the relevant authority may determine that the issue of site contamination is not fundamental and can be a reserved matter.  In making such a decision the relevant authority may rely on a preliminary site investigation report provided by the applicant.’

This provides express clarification and guidance for planners who are considering land divisions, dwelling applications and similar activities which are of a ‘more sensitive use’ for the purposes of the Practice Direction and the Planning, Development and Infrastructure (General) Regulations 2017.

It is not uncommon for preliminary site investigation reports for former farming, horticulture and similar sites to confirm that site contamination is either ‘low risk’ or likely to be ‘low risk’ if it exists.  In these situations, the cost of pursuing further investigations, an audit or similar can be prohibitive due to the size of the site, lending criteria and associated matters.

The use of a reserved matter, as envisaged in Practice Direction 14, may be a practical, pragmatic and sound mechanism to provide certainty to relevant authorities and applicants to ensure that an, otherwise, entirely appropriate development application can be granted planning consent with the knowledge that further site contamination investigations will occur prior to the grant of development approval.

Miscellaneous Technical Code Amendment

This is anticipated to commence shortly. It addresses a number of important clarifications and refinements.  The ‘key’ legal considerations are below.

·                Application of zones, subzones, overlays and TNVs

Where a zone, etc applies to only portion of a development site, it applies to only the relevant portion, not the whole site.  This clarification is important for large land divisions and other ‘greenfield’ sites which traverse multiple overlays, subzones and/or zones.

·                Public notification – minor variations

Table 5 – Public Notification will include the following discretionary consideration when determining whether a development application requires public notification.

‘A relevant authority may determine that a variation to 1 or more corresponding exclusions prescribed in Column B is minor in nature and does not require notification.’

This is an important addition.  Proposed buildings that slightly depart from criteria relevant which results in them being subject to public notification, but which do not have impacts beyond their site – for instance residential outbuildings – may be exempted from public notification where they currently require such notification.  This will not only save time and cost for applicants, but it will ensure that Assessment Panels are able to focus on more ‘significant’ development applications.

·                Definitions in Part 7 and Part 8 of the Code

In addition to a number of amendments to existing definitions, new land use definitions are to be inserted in Part 7 as follows:

• ‘Adult entertainment premises’ and ‘Adult products and services premises’

The effect of these new definitions is to ensure that these forms of development are distinct from ‘shop’ and ‘personal services establishment’ so they require development approval for a change of land use.

The effect is similar to the former Adelaide Council Development Plan which had its own land use definitions and as examined in the Supreme Court judgment in Frankham v Adelaide City Council [2004] SASC 263.

• ‘Function Venue’

In addition to this new definition, all references to ‘function centre’ in the Code will be amended to ‘function venue’.  This will give useful guidance to applicants and relevant authorities as to what is / is not, a function venue. This is, particularly, in zones such as the Rural Zone where these facilities are envisaged in association with primary production land uses.

• ‘Heavy Vehicle Parking’

This definition, being ‘the parking of any vehicle exceeding 3000kg in weight (including the weight of any attached trailer) on land used for residential purposes’, will assist in the assessment of development applications (which, in our experience, are often retrospective) for truck parking and similar, for owner-drivers and small business owners who wish to operate their trucking business from home.

New and amended Administrative Terms and Definitions in Part 8 of the Code

• The new definitions include ‘catalyst site’, ‘direct overlooking’, ‘excluded land division’ ‘high frequency public transport area’ and ‘post height’.
• A number of amendments and clarifications have been made to the existing definitions of ‘building height’, ‘building line’ and ‘wall height’. These should aid relevant authorities in determining assessment pathways and notification for built form developments, particularly residential and development adjacent to residential developments which (in our experience) can be the most scrutinized and challenged forms of development by adjacent land owners.

For further information, please call Victoria Shute on: 08 8113 7104 or email:   vshute@kelledyjones.com.au