Making sense of the draft Planning and Design Code — Part Four — Numeric and technical variations and renewable energy

4 November 2019

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

Part One is located  here. Part Two is located  here. Part 3 is located  here.

This Paper focuses on two topics – numeric and technical variations and renewable energy facilities.

The first topic is important given the complex approach to conveying quantitative assessment provisions through the Code and its Overlays.  We consider it timely, during the consultation process, to assist in identifying errors which may prevent the operation of these Overlays.

The second topic has been chosen with regard to the consultation deadline for Phase 2 council areas being 29 November 2019.  It is also important in the context of renewable energy facilities becoming increasingly common in rural and regional areas and will likely increase as technology continues to advance and environmental pressures increase.

Numerical and technical variations

Part 1 of the Code sets out the rules of interpretation for applying assessment provisions. Under this Part, all development is initially classified by reference to the Zone, Subzone and Overlays which apply to it. Classification tables applicable to each Zone identify Accepted Development (i.e. planning consent is not required), Deemed-to-Satisfy development (i.e. planning consent must be granted if criteria are met) and Restricted Development (applications to be lodged with the SCAP and no appeal rights apply for applicants).  If a proposed development does not fall within any of these three classifications, in that order of preference, it will be Performance Assessed, meaning that it is subject to a full merit assessment against relevant provisions of the Code.

Across the Zones, Subzones and Overlays, “desired outcome” and “performance outcome” criteria make reference to various numerical and technical overlays, including:

• Building Height Technical and Numeric Variation Overlay;
• Concept Plans Technical and Numeric Variation Overlay;
• Concept Plans Technical and Numeric Data Overlay;
• Maximum Building Height Levels Technical and Numeric Variation Overlay;
• Maximum Building Height Metres Technical and Numeric Variation Overlay;
• Minimum Building Height Levels Technical and Numeric Variation Overl

The names of these Overlays are self-explanatory, as is their relevance.  Despite the obvious importance of these Overlays, the Overlays themselves are not present in the text of the Code as Overlays.

It appears that the quantitative data intended to be contained within each of the above-mentioned Overlays is, in fact, contained within Part 6 – Index of Technical and Numeric Variations of the Code insofar as the text of Phase 2 of the Code is concerned (see part 6.4 of the Table).

There is no technical and numeric data in the text of Phase 3 of the Code.

We note that the Consultation Map Viewer appears to contain the technical and numerical variations.

Clearly, the references to Overlays in the text of the Code must be addressed as must the lack of technical and numeric variations in Phase 3.  Unless this occurs, the technical and numerical assessment criterial in Part 6 of the Code arguably cannot be applied to any planning assessments undertaken pursuant to the Code or, at the very least, this will generate legal arguments about whether the Code was adequately consulted and whether the data in the mapping system forms part of the Code or not.

Renewable energy facilities

Renewable energy facilities are defined within the Code here.

This new, broader, definition is welcomed.

Of note are the new requirements for set-back distances between wind farm developments and solar farm developments and other forms of development, being:

• a 2 kilometre wind turbine setback plus 10 metres per additional metre of turbine height above a tower height of 150 metres from townships and urban areas (in current Development Plans there is a 2 kilometre setback from Township Zones);
• a 2 kilometre wind turbine setback from dwellings not associated with the development (in current Development Plans this setback is 1 kilometre);
• a 500 metre solar farm setback from conservation areas, a 100 metre setback from township and other urban living-type boundaries and a 30 metre setback from neighbouring land (in current Development Plans there is no numerical setback requirement).

Importantly, new assessment criteria within the Code address the decommissioning and rehabilitation of renewable energy sites.  Performance outcome 3.1 in the general provisions for Infrastructure and Renewable Energy Facilities requires progressive rehabilitation (incorporating revegetation) of disturbed areas, ahead of or upon decommissioning of areas used for renewable energy facilities and transmission corridors.   This performance outcome is applicable for assessment of a wind farm or solar farm development in the Coastal Waters and Offshore Islands Zone and in the Remote Areas Zone.   Although the location of renewable energy facilities requiring that rehabilitation is limited, such assessment criteria is largely absent from current Development Plans and is welcomed.

The referral level to the EPA for energy generation and storage facility proposals has been amended from “regard” to “direction”, seeking to ensure that appropriate noise-related conditions are incorporated into final conditions of approval.  However, we note that the referral authority prescribed in the Code allows for expert technical assessment and direction to be provided – this means that the ultimate decision-making as to the clear wording of the conditions still rests with the relevant authority (rather than by direction from a referral agency).

Almost every Zone in the Code requires assessment (for both Deemed-to-Satisfy and Performance Assessed developments) against the water supply and wastewater services provisions in the Infrastructure and Renewable Energy Facilities section for a new building – whether a dwelling, office, consulting room, or industrial building. This approach ensures that the new buildings are properly and consistently provided with water and sewerage services suitable to their intended use.

Renewable energy facilities are publicly notifiable in the Coastal Waters and Offshore Islands Zone, and wind farms are specifically notifiable in the Remote Areas Zone, Rural Zone, Rural Intensive Enterprise Zone, Rural Living Zone.  Windfarms, specifically, are listed as restricted development in the Peri-Urban Zone and all non-rural zones.  This approach is in keeping with the policy attitude towards those developments in Development Plans.

Renewable energy facilities are encouraged where the Marine Parks (Managed Uses) Overlay applies. Conversely, the Significant Landscape Protection Overlay discourages renewable energy facility development where that Overlay is applicable. Similarly, PO 1.2 in the Character Preservation Districts Overlay identifies that renewable energy facilities and ancillary development are not supported where that Overlay applies.

Renewable energy facilities are restricted development where the Character Preservation Districts Overlay or the Significant Landscape Protections Overlay apply.  This is to be expected given the high value placed on character and amenity in those areas.  Councils should carefully review the Significant Landscape Protections Overlay to ensure that all sensitive areas are mapped.  Please note that the Character Preservation Districts Overlay only applies to those areas subject to the Character Preservation (Barossa Valley) Act 2012  and the Character Preservation (McLaren Vale) Act 2012.

Our comments on particular performance outcome assessment criteria in the general Infrastructure and Renewable Energy Facilities are set out here.

 

For further information regarding the draft Code, please contact:

Victoria Shute: vshute@kelledyjones.com.au

David Altmann: answers@developmentanswers.com.au