LG Alert - Planning Assessment Update

29 April 2024

In this Alert we consider three, recently-released documents concerning our planning system.  The most recent being the State Planning Commission’s Practice Guideline 1 – Natural Ground Level.

Practice Guidelines are a new and important ‘tool’ under the Planning, Development and Infrastructure Act 2016 (PDI Act).  They are made by the State Planning Commission with the approval of the Minister as per section 43 of the PDI Act. They concern the interpretation, use or application of the Planning Rules (being the Planning and Design Code and Design Standards) and the Building Rules (being the National Construction Code and Ministerial Building Standards).

Most importantly, section 43(3) of the PDI Act provides:

“If a relevant authority acts in accordance with a practice guideline, the relevant authority will be taken, in absence of proof to the contrary, to be acting consistently its the relevant provisions of the Planning Rules or the Building Rules (as the case may be)”.

Practice Guidelines can, therefore, play an important role in resolving disputes concerning the interpretation, use and application of the Planning Rules and Building Rules without the need for litigation in the ERD Court.

Returning to Practice Guideline 1, this provides a comprehensive summary of case law concerning the term ‘natural ground level’ and how it should be determined.  Importantly, it provides guidance on circumstances where it is not possible to determine actual natural ground level due to historic earthworks or where historic earthworks have changed levels so that natural ground level is no longer relevant.  In both cases, natural ground level is to be taken to be the existing ground level.  This is a logical position given that determination of natural ground level in planning assessments is often used to measure wall heights and other building elements which may have significant visual and other impacts on neighbouring properties.  This Practice Guideline provides clarity and certainty for relevant authorities, applicants and representors on this, often controversial, issue.

The remaining two documents are the ‘Final Report and Recommendations 2023’ of the Expert Panel for the Planning System Implementation Review and the Government Response.

Of particular legal note:

1. Recommendation 1  which is to ensure that ‘over-height’ development attracts third party appeal rights, by ensuring that it is ‘restricted’ development in the Planning and Design Code, is supported by the Government and will be implemented through future Code Amendments.
2. Recommendation 4 is to create an additional, ‘on boundary’ form of public notification for development, so that only directly affected neighbours are notified.  This recommendation is supported ‘in principle’ by the Government, meaning that it will be the subject of further investigations.  Incorporating such a reform could occur by various means, including through mechanisms similar to Categories 2 and 2A developments under the Development Act 1993 whereby neighbours within a certain distance of the development site are notified or only an adjacent neighbour to boundary development is notified.  It remains to be seen when and how this recommendation is advanced, however, given the impact of boundary development on adjacent properties and the lack of representation rights for many types of boundary development, a new form of public notification will likely assist neighbours in understanding development applications close to them as well as allowing them to make representations.
3. Recommendations 6, 7, 21, 22 concern ‘minor variations’.  The question as to whether a variation is ‘minor’, how it is recorded and the cumulative effect of multiple ‘minor’ variations, give rise to often complex legal disputes.  The introduction of refinements and/or guidance on how and when minor variations can and should be granted (perhaps through a Practice Guideline) has the potential to avoid costly legal disputes in the ERD Court and beyond.

We await the outcomes of the review process and its recommendations and will keep you updated with amendments and new initiatives as they happen.

If you have any questions, please do not hesitate to contact Victoria Shute on 08 8113 7104 or vshute@kelledyjones.com.au