De—coding Phase 3 of the Planning and Design Code — Paper 1 — Residential Development

25 November 2020

The release of the amended Draft Phase 3 Planning and Design Code (“draft Code”) and accompanying Phase Three (Urban Areas) Planning and Design Code Amendment Summary of Post-Consultation Amendments November 2020 report (“the report”) allows all councils one final opportunity to review and ‘road-test’ the Code before its final implementation on an, as-yet, unconfirmed date in 2021.

Submissions on the updated Code amendment are being received until 18 December 2020.

This new ‘round’ of consultation demonstrates that previous consultation reports from councils have, indeed, been carefully considered and concerns noted.

Continuing our support for councils during the implementation of the PDI Act, Kelledy Jones Lawyers, together with Development Answers, has reviewed these documents and is now publishing four (4) papers for the consideration of councils in preparing submissions.

For reference, a list of our previous papers on the State’s planning reforms is located at the end of this Alert.

This paper covers inconsistencies between different versions of the Code, as well as Residential Development.

We encourage all councils to carefully consider and review these documents. The Code amendments will apply across the State and there are a number of new Zones and policies which are intended to address and/or clarify Phase 2 policy anomalies and/or omissions.

Inconsistencies between versions of the Code

When the Code is accessed through PlanSA, three options to view it are provided, as per the below image.

The first two options require the input of a specific property address.  Once this occurs, the website creates summaries of relevant Code provisions applicable to that address.

For the purposes of preparing submissions, the third option, ‘Browse the Planning & Design Code’ is, in our view, the most helpful.

When you click this link, the following page appears:

If you click the box labelled “Download the full code” which is contained within the green oval above, you will be able to download a .pdf version of the Code.  Be aware, however, that, as of the date of this Paper, this version of the Code is incomplete and inconsistent with the other versions of the Code.

To access the full Code, you will need to use the browser-based version of the Code, found in the red rectangle above.

We do not recommend that the .pdf version of the Code be used for the preparation of submissions. This is because the omissions from it are substantial and include accepted and deemed-to-satisfy development tables, restricted development tables and some public notification tables.

A wider selection of ‘Neighbourhood Zones’ and variations between them

The Code will now contain six (6) different Neighbourhood Zones – being Zones where residential development is encouraged and is the predominant form of land use.

  • Established Neighbourhood Zone

This Zone applies to established residential areas that have strong character and built form characteristics. Technical and Numeric Variations (“TNV’s”) apply to site areas, site frontages and height.

Councils should check the applicable TNV’s to ensure that they are correctly applied in the online version of the Code and are correctly listed.

At present, the .pdf and online version of the draft Code lists all DTS/DPF TNV’s in a table, without confirming which areas they apply to. The .pdf version of the Code refers to “Technical and Numeric Variation layers” in the SA planning database as the basis for determining which TNV applies to a particular property.

This means that TNV’s can only be checked against individual addresses using the following functions on Plan SA:

Ideally, councils should be requesting maps which have been used to program the TNV’s into the Code, to ensure that they are correct.

Accepted development (i.e. development that does not require planning consent) and deemed-to-satisfy development (i.e. development that undergoes a codified assessment and must be approved if DTS criteria are met) are contained in Tables 1 and 2 respectively, within the Zone. The forms of accepted and deemed-to-satisfy forms of development are limited and are also subject to a number of overlays that, where the overlays apply, will push these forms of development into performance assessed development.

Note that Tables 1 and 2 are missing from all Neighbourhood Zones in the .pdf version of the Code, but are present in the browsable version which opens in-browser when you click “Browse the Planning & Design Code”. Information concerning accepted and deemed-to-satisfy development appears when you browse for policies by address and development type.

A high proportion of development in this Zone is likely to be performance assessed, meaning that it requires a merit planning assessment. All performance assessed development in the Zone requires public notification (and a decision by the relevant Assessment Panel unless delegations apply) unless exceptions apply. The exceptions are limited to:

    • development which, in the opinion of the relevant authority, is of a “minor nature”;
    • development undertaken by the South Australian Housing Trust or provider registered under the Community Housing National Law, subject to exceptions; and

forms of accepted and deemed-to-satisfy development that do not satisfy the relevant criteria in “Established Neighbourhood Zone Table 1 – Accepted Development” and “Established Neighbourhood Zone Table 2 – Deemed-to-Satisfy”, subject to on review of the “What policies apply to an address?” and “What policies apply to a development?” functions on Plan SA, accepted developments and deemed-to-satisfy developments are identified, but are not given applicable criteria.

  • General Neighbourhood Zone

This Zone is intended to contain wholly standardised provisions without any localised TNV’s.  It has, largely, been applied to areas where the Residential Code currently applies.

Councils should check mapping for this Zone to ensure that any residential areas which require special considerations and TNV’s, are not included in it.

As with the Established Neighbourhood Zone, Table 1 – Accepted Development and Table 2 – Deemed to Satisfy have been omitted from the downloadable .pdf version of the draft Code, but are provided in the online version. As per our comments for the Established Neighbourhood Zone, these inconsistencies need to be addressed to ensure that the online version of the Code is consistent with the.pdf version

  • Hills Neighbourhood Zone

This new Zone is intended to apply where Development Plan Zones and/or Policy Areas containing the words “Hills” and “Foothills” etc exist.

It contains specific TNV’s and policy to carefully address sloping lands. Again, TNV’s need to be checked as does the extent of Zone mapping to ensure that all existing Zones are ‘captured’.

As above, Table 1 – Accepted Development and Table 2 – Deemed to Satisfy are only included in the online version of the draft Code and are omitted from the .pdf version. As per our comments for the Established and General Neighbourhood Zone, this inconsistency needs to be addressed. We also note that the only deemed-to-satisfy development for this Zone is farming and that only limited accepted development is provided for. Notably, outbuildings, carports and verandahs are not provided for as either accepted development or deemed-to-satisfy in the Zone.

As with the Established Neighborhood Zone and having regard to the limited classes of development that are exempt from requiring public notification in Table 5 – Procedural Matters (PM) – Notification, a large proportion of development in this Zone will be performance assessed and subject to public notification. This should be carefully reviewed and feedback provided in relation to greater exclusions from public notification or better assessment pathways, for forms of development that would otherwise be acceptable in the Zone.

  • Master Planned Neighbourhood Zone

This Zone is intended to replace the Master-Planned Suburban Neighbourhood and Greenfield Suburban Neighbourhood Zones. The intent of this Zone is to provide accepted pathways of development in areas that have been Master Planned. For example, dwellings in the Zone should be either accepted development or deemed-to-satisfy.

As above, Table 1 – Accepted Development and Table 2 – Deemed to Satisfy are only included in the online version of the draft Code and omitted from the .pdf version. This inconsistency needs to be addressed.

The accepted development and deemed-to-satisfy tables are more extensive than in other Neighbourhood Zones. Relevantly, both tables include “detached dwellings” as either accepted development or deemed-to-satisfy, subject to exceptions, overlays and meeting the relevant policies. The deemed-to-satisfy table also include criteria for:

    • detached or residential flat buildings being undertaken by the SA Housing Trust or provider registered under the Community Housing National Law;
    • replacement buildings;
    • row dwellings; and
    • semi-detached dwellings.

Of note, residential flat buildings by anyone other than the SA Housing Trust or registered provider, will be performance assessed in the Zone. No deemed-to-satisfy criteria is provided for group dwellings.

  • Suburban Neighbourhood Zone

This Zone now has minimum site dimension assessment criteria and building height assessment criteria. TNV’s have been included to allow current Development Plan requirements to be ‘transitioned’ to the new Zone.

This Zone is intended to apply to areas that are experiencing some infill development, but not the same extent of infill as the Master Planned Neighbourhood Zone.

Councils should, again, carefully check TNV’s in this Zone through Plan SA to ensure that they match existing and desired criteria within applicable areas.

The same issues concerning TNV tables and the inconsistencies between the online and .pdf version of the draft Code, being the omission of Table 1 – Accepted Development and Table 2 – Deemed to Satisfy, apply for this Zone.

Similar criteria for accepted development and deemed-to-satisfy to that in the Master Planned Neighbourhood Zone is provided. This should be reviewed to ensure that appropriate assessment pathways are being provided for the Zone.

  • Township Neighbourhood Zone

This Zone includes policy, specifically designed for residential areas where commercial land uses are not envisaged and where existing patterns of development are intended to be retained.

TNV’s apply in this Zone which, again, need to be carefully checked through Plan SA along with the boundaries of and mapping associated with this Zone.

The same issues concerning TNV tables and inconsistencies between the online and .pdf version of the draft Code, being the omission of Table 1 – Accepted Development and Table 2 – Deemed to Satisfy, apply for this Zone.

  • Waterfront Neighbourhood Zone

As the name suggests, this Zone is intended to apply to residential areas where properties have water frontages. Again, mapping needs to be carefully checked as do applicable TNV’s, especially in master planned marina areas, to ensure consistency with master planned designs, encumbrances and Land Management Agreements.

The same issues concerning TNV tables and inconsistencies between the online and .pdf version of the draft Code, being the omission of Table 1 – Accepted Development and Table 2 – Deemed to Satisfy, apply for this Zone and need to be addressed.

There are also other inconsistencies between the Neighbourhood Zones that may lead to ambiguity, issues of interpretation and more forms of development requiring notification than may be anticipated. For example, Table 5 Procedural Matters – Notification in the Waterfront Neighbourhood Zone lists a “dwelling” and “residential flat building” individually as being exempt from requiring public notification, subject to meeting certain requirements.

Table 5 in the Township Neighbourhood Zone lists “residential development comprising any of the following (or combination thereof): (i) dwelling (ii) residential flat building. These types of inconsistencies inevitably lead to questions of interpretation and how Table 5 in each Zone is to be interpreted and whether a combination of dwelling and residential flat building will be publicly notified in some Zones but not others.

There are also very few classes of development listed in the Restricted Development tables in each of the Neighbourhood Zones. This means that a high proportion of developments that would have been non-complying under Development Plans, will be Performance Assessed. Councils may wish to consider:

    • the implications of having such developments listed as Performance Assessed which means that:
      • applications will be determined by the Assessment Manager or Assessment Panel;
      • representors will not have appeal rights;
      • the applicant will have appeal rights and the ability to obtain deemed consents if assessment timeframes are exceeded,

against

    • the implications of having such developments listed as Restricted Developments, which means that:
      • applications will be determined by the State Commission Assessment Panel;
      • representors will have appeal rights;
      • applicants do not have appeal rights against early refusal decisions on their application.

Trees

A new Overlay, the Urban Tree Canopy Overlay, has been added to the Code to require tree planting for many new forms of development.

This Overlay applies to deemed-to-satisfy new dwelling developments in most Neighbourhood Zones. This is in direct response to many submissions expressing concerns as to the loss of trees as a result of increased residential densities in Greater Metropolitan Adelaide.

Councils should consider the requirements of this Overlay and its application to residential developments.  For instance, at present, the Overlay is applicable to deemed-to-satisfy new dwellings but not generally to dwelling additions – this may or may not be considered appropriate, depending on council areas and topography.

Further, the “report” mentions “investigate establishment of an offset scheme to provide the option for payment into a fund to support the planting of trees in reserves, or other public land, instead of planting new tree(s) on development sites”.

We have interpreted this statement to mean that either the Minister for Planning or councils, are able to investigate establishing an off-set scheme under section 197 of the PDI Act to allow for payments in lieu of tree plantings.

Off-set schemes work in a manner which is not dissimilar from existing car parking funds.  The establishment of an off-set scheme could be effective in allowing for flexibility where it is not possible or feasible to plant a tree on a new dwelling site.

In anticipation of the establishment of a Ministerial off-set scheme, councils should consider how much an adequate fee would be, how a fund should be established and managed, how funds should be distributed and whether to consider their own off-set schemes for this purpose.

The Regulated and Significant Tree Overlay now applies to regulated and significant trees under the PDI Act.

This Overlay, whilst formatted and ‘set out’ differently to Development Plan content, contains materially similar provisions applying to the ‘protection’ of regulated and significant trees.

If you have any questions, please contact:

Victoria Shute

vshute@kelledyjones.com.au

08 8113 7104

David Altmann

answers@developmentanswers.com.au

08 8531 1600

 

Emily Nankivell

enankivell@kelledyjones.com.au

08 8113 7114

LINKS TO PAST PAPERS:

Paper Title Date
LG Alert: Planning Reform Update – Public Consultation, Contributory Items and More November 2020
LG Alert: Are You Ready for the Planning and Design Code? July 2020
LG Alert: Proclamations and more legislative changes to our new planning system June 2020
LG Alert: What We Have Heard Report – Phase Three of the Planning and Design Code (Urban Areas) June 2020
LG Alert: Planning and Design Code – Amendment for Phase 2 (Rural Areas) June 2020
LG Alert: Draft Planning and Design Code – Update Report from the State Planning Commission on Phase Two of the Planning and Design Code (Rural Areas) April 2020
LG Alert: Balancing COVID-19 pandemic measures against the administration of the Development Act 1993 and the Planning, Development and Infrastructure Act 2016 March 2020
LG Alert: BREAKING NEWS: Pushing back the Planning and Design Code February 2020
LG Alert: an Update on the State Planning Commission’s Draft Planning and Design Code: Update Report January 2020
LG Alert: Draft Planning and Design Code – Part Eight December 2019
LG Alert: Draft Planning and Design Code – Part Seven December 2019
LG Alert: Draft Planning and Design Code – Part Six November 2019
LG Alert: Draft Planning and Design Code – Part Five November 2019
LG Alert: Draft Planning and Design Code – Part Four November 2019
LG Alert: Draft Planning and Design Code – Part Three October 2019
LG Alert: Draft Planning and Design Code – Part Two October 2019
LG Alert: Draft Planning and Design Code – Part One October 2019
LG Alert; Renewing renewable energy policy – what is proposed to change in the Planning and Design Code? July 2019
LG Alert: Swimming pool safety and the PDI Act July 2019
LG Leader: The Planning, Development and Infrastructure (General) Regulations 2017 are now complete and our new development system is largely revealed – what does this all mean? July 2019
LG Leader: So what has DPTI heard on the draft Planning, Development and Infrastructure (General) (Development Assessment) Variation Regulations 2019? June 2019
LG Leader: Planning, Development and Infrastructure Act 2016 – Planning Reform Well Underway March 2019
South Australia’s Planning Reforms: the transition to a new planning system in full swing (2019) 18(1) LGOVR 4 January 2019
LG Leader: Accredited Professionals and Panels – a view to the future June 2018
LG Leader: PDI Accreditation Scheme – do you need to be Accredited? March 2018
New Council Assessment Panels in South Australia – an overview (2018) 17(1) LGOVR 7 February 2018
LG Leader: Recent developments in development law July 2017
(Planning) systems are go!  South Australia’s transition to a new planning system is underway (2017) 16(5) LGOVR 91 July 2017
LG Leader: The Existing Activity Centres Policy Review DPA – “streamlining” the planning system ahead of the PDI Act implementation process September 2016
LG Alert: Everyone is talking about it – but are you across the detail? Our detailed overview of the proposed amendments to and implementation of the Planning, Development and Infrastructure Act 2016 September 2016
LG Alert: Update to the 30 Year Plan for Greater Adelaide – How Will It Affect the New Planning System? August 2016
Planning, Development and Infrastructure Act 2016 – South Australia’s new planning system has passed into law.  What does the new Act contain and what will happen next? (2016) 15(4) LGOVR 264 June 2016
A look into the future – the Planning, Development and Infrastructure Bill 2015 outlines South Australia’s new planning system (2016) 15(1) LGOVR 204 March 2016
LG Alert: PDI Bill Update – New infrastructure scheme proposed February 2016
LG Alert: PDI Bill Update November 2015
LG Alert: Planning, Development and Infrastructure Bill 2015 – Frequently Asked Questions October 2015
LG Alert: Amendments to the PDI Bill September 2015
LG Leader: Transitioning to a new planning system – a longer-term process September 2015
LG Leader: Which comes first, the land division or the building?  Parliament will soon resolve this question once and for all. March 2015
LG Alert: Planning Reform Update – key points from the Government’s response to the final report and recommendations of the Expert Panel on Planning Reform March 2015
LG Alert: Back to the Future? The Expert Panel’s final report December 2014
LG Leader: The Future of Development Assessment Panels June 2014
LG Leader: Our Planning System – a central issue in the 2014 State Election March 2014
LG Leader: What We Have Heard – South Australia’s Expert Panel on Planning Reform delivered its first report December 2013
Planning law reform builds momentum in South Australia (2013) 11(8) LGOVR 126 July 2013
LG Leader: Planning law reform gathers momentum – Parliament wrap-up May 2013
LG Leader: Government Announces Comprehensive Review of Planning System – the Planning Improvement Project March 2013