Making sense of the draft Planning and Design Code — Part Five — Commercial and Retail Development

14 November 2019

This Paper is Part Five in our series of Papers on Phases 2 and 3 of the draft Planning and Design Code (“the Code”). The Code is currently out for public consultation.

Part One can be located  here. Part Two can be located  here. Part 3 can be located  here. Part 4 can be located  here.

In this Paper, we focus on commercial and retail developments and how these are represented in the Code. In particular, we look at those parts of the Code that envisage commercial and retail land uses, what appears to “work” and how the Code could be improved to assist in the assessment of commercial and retail and developments.

General Comments

Commercial and retail developments appear frequently in the Code with a majority of Zones envisaging some form of commercial or retail development. In Zones where more sensitive land uses (i.e. residential) are envisaged, commercial and retail development is, generally, limited to small-scale shops, offices and consulting rooms with the size limited through maximum gross leasable floor areas.

The Code is inconsistent in its approach to assessment criteria for commercial and retail developments.

In some Zones where commercial and retail development is envisaged (for example the City Living Zone, Capital City Zone¹, Community Facilities Zone, Master-planned Suburban Neighbourhood Zone and Residential Neighbourhood Zone), there is often an absence of deemed-to-satisfy and/or performance assessed criteria. This creates difficulties for the assessment of retail and commercial development and creates questions as to how decisions to grant or refuse a planning application will be defended on appeal.

In many Zones² floor area restrictions for shops are provided. The same level of restriction is not provided for other commercial developments such as offices or consulting rooms.

While the need to limit the size and intensity of certain commercial and retail developments within certain Zones (for example in the Residential Neighbourhood Zone, Peri-Urban Zone and Rural Living  Zone)  is acknowledged  and often warranted, using  a floor  area maximum to achieve this can be overly restrictive and discourage the conversion of existing buildings to commercial and retail land uses.

Rather than a floor area maximum, Zones such as the Business Neighbourhood Zone, Employment Zone, Rural Horticulture Zone, Suburban Employment Zone, Urban Corridor (Boulevard) Zone, Urban Corridor (Business) Zone, Urban Corridor (Living) Zone, Urban Neighbourhood Zone, Urban Renewal Neighbourhood Zone could provide detailed assessment provisions to guide the appropriate size of commercial and retail development.

Alternatively, assessment criteria could be included that provides for greater allowances where an existing building is proposed to be used for a commercial or retail use. Or an overlay could be provided that demonstrates a hierarchy for commercial and retail development in the State.

The restrictions that apply in relation to maximum gross leasable floor area for certain commercial and retail development and the use of existing buildings, is partially addressed by the inclusion of deemed-to-satisfy criteria for a change of use of an existing building, for different commercial and retail uses.

For example, the City Main Street Zone includes deemed-to-satisfy criteria for a change in use of an existing building (that does not involve any building work or modification that would otherwise require planning consent) from:

• an office to a consulting room or shop;
• a shop to an office or consulting room;
• a dwelling to an office or consulting room;
• an office or consulting room to a dwelling(s) – other than on the ground flo

The above deemed-to-satisfy change of use criteria is not included in every Zone that envisages commercial or retail development, for example the City Living Zone³ – we question whether this should be the case.

Further, the criteria apply only in circumstances where the subject land has previously been used for a specific commercial or retail use, being a shop, office or consulting room. There is scope to extend the deemed-to-satisfy change of use criteria, to include buildings previously used for other land uses which would be suitable for conversion to commercial and retail uses, such as certain forms of industry.

Specific Observations

There are discrepancies between the deemed-to-satisfy criteria, restricted development criteria and performance assessed criteria in the Code, in relation to the size (i.e. gross leasable floor area) of certain commercial and retail development. For example, the Employment Zone lists a shop as a restricted development where:

• the gross leasable floor area exceeds 1,000m²; or
• it is a form of shop other than a bulky goods outlet; or
• it is not ancillary to an industry land use on the same allotment.

The first discrepancy is that there is an absence of assessment policy for the appropriate size of a bulky goods outlet or a shop, ancillary to an industry use within the Employment Zone. This lack of guidance has the potential to create legal dispute as to how large such developments may be before they are inappropriate and how large they may be to be considered ancillary to an industry land use.

The second discrepancy is the difference between the maximum gross leasable floor area for restricted shops being 1,000m² and, DTS/DPF 3.1 which provides a maximum gross leasable floor area for a shop of 500m². This discrepancy causes uncertainty in assessing the appropriateness of shops in the Employment Zone with a gross leasable floor between 500m² to 1,000m². Such shops are performance assessed but DTS/DPF 3.1 appears to discourage them being any larger than 500m².

This same discrepancy arises in a number of other Zones in the Code including the Business Neighbourhood Zone, City Living Zone, General Neighbourhood Zone, Greenfield Suburban Neighbourhood Zone, Housing Diversity Neighbourhood Zone, Innovation Zone, Peri-Urban Zone, Residential Park Zone, Rural Zone, Rural Horticulture Zone, Rural Living Zone, Suburban Employment Zone, Suburban Business and Innovation Zone, Suburban Neighbourhood Zone, Tourism Development Zone, Urban Corridor (Boulevard) Zone, Urban Corridor (Business) Zone, Urban Corridor (Living) Zone, Urban Neighbourhood Zone and Urban Renewal Neighbourhood Zone.

Where a discrepancy between the gross leasable floor area for restricted development and deemed-to-satisfy criteria exists in a Zone, additional assessment policy should be provided that specifies circumstances and factors to be considered for development that exceeds a DTS/DPF maximum floor area, Such factors might include the location and size of the development and/or whether the development is intended for one tenancy or multiple tenancies. Alternatively, the discrepancy could be removed and consistent application of the maximum gross leasable floor area be applied between the deemed-to-satisfy, performance assessed and restricted development tables in each Zone. For example, in the Home Industry Zone, a shop with a floor area no greater than 250m² can be performance assessed whereas a shop with a floor area greater than 250m² is restricted development, resulting in greater clarity of the appropriate maximum size for development.

There is an error in the Employment Zone – General Industry is listed as a restricted form of development whilst Special Industry is not – we suggest this should be amended.

Adding some further potential confusion and as outlined in earlier papers, we question the use of DTS criteria for performance assessed developments, via use of the same DPF criteria. The manner in which deemed-to-satisfy criteria is expressed could lead to performance assessed development applications being refused due to a lack of guidance as to what variations from deemed-to-satisfy criteria are and are not appropriate in a performance assessment.

All envisaged land uses within Zones should be captured in the deemed-to-satisfy and performance assessed criteria and, where relevant, the restricted development criteria in a Zone, to streamline assessment for acceptable land uses and to provide clarity as to when development is and is not appropriate.

For example, a shop in the Home Industry Zone – an envisaged land use – is performance assessed and cannot be deemed-to-satisfy. In addition, a shop is only an envisaged use in the Zone where it is being proposed in conjunction with light industry – however, this is not captured in the restricted development table.

Building heights are provided within each of the Zones generally through a performance outcome accompanied by relevant DTS/DPF criteria. In relation to building height, the introduction of deemed-to-satisfy provisions for the grading of building heights in the Building Neighbourhood Zone and Motorsport Park Zone is a welcome addition and provides for different building heights, depending on the location of land within the Zone. This is different from current assessment criteria in Development Plans that, generally, provides a maximum building height within Zones and acknowledges that different building heights may be appropriate depending on the specific location of the development.

For example, DTS/DPF 3.1 in the Business Neighbourhood Zone, allows 2 levels or 9 metres where sites adjoin a residential allotment in another Zone or 3 building levels or 12 metres in other cases. In this example the height limitation applies only to residential allotments in another Zone.  If it is intended to restrict heights of buildings on land adjacent to any residential allotment, part a. of DTS/DPF 3.1 (and any other similar assessment policy) will require amendment to capture any residential allotment within the Zone or in another Zone.

Another area which requires refinement is the performance assessment criteria provided in the Township Main Street Zone and Township Activity Centre Zone.  Table 3 of these Zones lists the following forms of development as being performance assessed:

Office

Bank

Civic Centre

The way in which this the criteria is presently phrased, the underlining and use of terms, creates uncertainty.  For instance, does the relevant performance assessed criteria listed apply to all forms of office, or only to offices which are banks or civic centres?  What is a bank or a civic centre?  Why is the term “office” underlined?  Further clarification and/or amendment is required to avoid uncertainty.

Further, there is no procedural (i.e. notification) table in the Suburban Employment Zone and Urban Activity Zone. It is not clear whether this is an intentional omission or whether the table has been omitted in error.

As it relates to commercial type development in rural areas, DTS/DPF 4.1 of the Rural Zone limits industry, storage, warehousing and transport distribution activities to a floor area of 250m² and allotments at least 20 hectares. As stated previously, the floor area and minimum allotment size are both considered problematic and unrealistic for rural/agricultural areas.

The 250m² floor area should be increased and consideration should be given to having separate deemed-to-satisfy and performance assessed criteria for floor areas.  The 20 hectare minimum allotment size is considered too large and may “lock out” smaller primary industry developments from developing such facilities.  Again, consideration needs to be given to having separate deemed-to-satisfy and performance assessed criteria for allotment sizes.

Specific Observations – General Provisions

The general criteria that will apply to retail and commercial developments includes:

• Advertisements
• Beverage Production in Rural Areas
• Design in Urban and Rural Areas
• Interface between Land Uses
• Marinas and On-Water Structures
• Transport, Access and Parking
• Tourism Development

Notably, no specific general module is provided for retail and commercial development. Given that retail and commercial developments feature so heavily in the Code it is surprising that more detailed and specific assessment criteria is not provided for these forms of development.

The advertisement provisions are similar to those that exist in Development Plans and provide assessment policy for advertising both attached to buildings and freestanding. There are also specific policies to prevent the proliferation of advertising which is important as it ensures land and streetscapes will not be dominated by advertising under the Code.

Where commercial or retail development are identified as deemed-to-satisfy or performance assessed development in a Zone, assessment policy within Design in Urban Areas will be applicable, including PO 1.4 which requires plant and exhaust and intake vents to be positioned in unobtrusive locations. The DTS/DPF requires structures of this nature not to protrude beyond the roofline. This is also an important design aspect to retail and commercial development to ensure the amenity of a locality is maintained.

PO 42.3 appears to have been erroneously omitted from the Design in Urban Areas assessment criteria. PO 42.3 is a general development policy that applies to shops and is referenced in the City Living Zone, but is not contained within the Design in Urban Areas general provisions. Whilst referenced, unless the provision is included in the Code, a relevant authority cannot have regard to it in assessing relevant developments.

The Interface Between Land Uses General Provisions apply to commercial and retail developments, largely for the purpose of assessing hours of operation. DTS/DPF 2.1 includes acceptable hours of operation between Monday-Friday and Saturday, but does not include any hours for Sunday.

Carparking and vehicle movements are often a critical element for commercial and retail development. The Transport, Access and Parking General Provisions provide assessment provisions for movement, access and parking rates required for commercial and retail development. The provisions contained in the Design in Urban Areas General Provisions also provides guidance on the design and location of car parking. These general provisions are considered to provide useful guidance for the appropriate design of carparking.

Under the Code, some forms of retail and commercial developments will be provided with a more streamlined assessment process. However, the reliance on maximum gross leasable floor area to restrict some forms of commercial and retail development, the lack of deemed-to-satisfy and performance assessed criteria in Zones where commercial and retail development is envisaged (such as an absence of applicable deemed-to-satisfy criteria in the Suburban Neighbourhood Zone), inconsistences in requirements within Zones and the definitions, require further refinement to ensure consistency and to remove ambiguity and, inevitably, avoidable disputes.

For further information regarding the draft Code, please contact:

Victoria Shute: vshute@kelledyjones.com.au

David Altmann: answers@developmentanswers.com.au

 

¹ The Capital City Zone does not include a Deemed-to-Satisfy table.

² Including the Business Neighbourhood Zone, City Living Zone, Employment Zone, General Neighbourhood Zone, Greenfield Suburban Neighbourhood Zone, Innovation Zone, Peri-Urban Zone, Residential Park Zone, Residential Neighbourhood Zone, Rural Zone, Rural Horticulture Zone, Rural Living Zone, Suburban Employment Zone, Suburban Business and Innovation Zone, Suburban Neighbourhood Zone, Tourism Development Zone, Urban Corridor (Boulevard) Zone, Urban Corridor (Business) Zone, Urban Corridor (Living) Zone, Urban Neighbourhood Zone and Urban Renewal Neighbourhood Zone

³ In the City Living Zone a change of use is captured within the Restricted Development Table rather than as deemed-to-satisfy development.