Making sense of the draft Planning and Design Code - Part One - Introduction, Land Use Definitions and Administrative Definitions

3 October 2019

Introduction

On 1 October 2019, Phase 2 and Phase 3 of the Planning and Design Code (“the Code”) were released, in draft, for public consultation.

The Code is being introduced in 3 Phases. As each stage commences, so does the full commencement of the Planning, Development and Infrastructure Act 2016 (“the PDI Act”) in particular areas of the State.

Phase 1, which applies to areas outside of proclaimed council areas, came into operation on 1 July 2019.

Phase 2 applies to the following councils:

Barunga West Council Berri Barmera Council District Council of Ceduna
Clare & Gilbert Valleys Council The District Council of Cleve District Council of Coober Pedy
Coorong District Council Copper Coast Council District Council of Elliston
The Flinders Ranges Council District Council of Franklin Harbour Regional Council of Goyder
District Council of Grant Kangaroo Island Council District Council of Karoonda East Murray
District Council of Kimba Kingston District Council District Council of Lower Eyre Peninsula
District Council of Loxton Waikerie District Council of Mount Remarkable Naracoorte Lucindale Council
Northern Areas Council District Council of Orroroo Carrieton The District Council of Peterborough
Renmark Paringa Council District Council of Robe Roxby Downs Council
Southern Mallee District Council District Council of Streaky Bay Tatiara District Council
District Council of Tumby Bay Wakefield Regional Council Wattle Range Council
Wudinna District Council Yorke Peninsula Council

 

Consultation for the Phase 2 areas is open until 29 November 2019 and the Code is expected to commence operation in the Phase 2 areas in April 2020.

Phase 3 applies to the following councils:

City of Adelaide Adelaide Hills Council Adelaide Plains Council
Alexandrina Council The Barossa Council City of Burnside
Campbelltown City Council City of Charles Sturt Town of Gawler
City of Holdfast Bay Light Regional Council City of Marion
Mid Murray Council City of Mitcham Mount Barker District Council
City of Mount Gambier Rural City of Murray Bridge City of Norwood, Payneham & St Peters
City of Onkaparinga City of Playford City of Port Adelaide Enfield
Port Augusta City Council City of Port Lincoln Port Pirie Regional Council
City of Prospect City of Salisbury City of Tea Tree Gully
City of Unley City of Victor Harbor Town of Walkerville
City of West Torrens Whyalla City Council District Council of Yankalilla

 

Consultation for the draft Code for Phase 3 is open until 28 February 2020 and the Code will commence operation in Phase 3 areas on 1 July 2020.   Clause 9 of Schedule 8 to the Act prescribes that the Planning and Design Code must be in full operation on 1 July 2020 – meaning that this date is ‘set’ and cannot be changed other than through amendments to the PDI Act made by Parliament.

Over the next few weeks (and conscious of the tight deadline for consultation on Phase 2), Kelledy Jones Lawyers and Development Answers will release a series of Papers which analyse the key features of the Planning and Design Code and the impacts on particular land use classes.  We will explore these features and will provide our comments on opportunities and challenges that are posed by the Code.

Below is our first Paper which analyses Land Use Definitions and Administrative Definitions in the draft Code.  For clarity, these Parts are the same in Phase 2 and Phase 3 versions of the draft Code.

Part 7 – Land Use Definitions

Part 8 –  Administrative Definitions

Defined terms have the potential to ‘make or break’ a planning system, hence why our first Paper addresses these.  Whether or not a proposed development falls within one defined land use term or another will influence the assessment pathway it is assigned under the Act and how ‘difficult’ it may be to obtain development approval.

Presently, arguments concerning land use definitions drive a considerable amount of legal challenges in the Environment, Resources and Development Court.   One of the ongoing criticisms of Schedule 1 to the Development Regulations 2008, which defines forms of development under the Development Act 1993 is that it contains definitions which are overly narrow, archaic, outdated and which have not ‘kept pace’ with modern development nor case law authorities over time.

One of the significant reforms of the PDI Act is that land use definitions are contained within the Code1 and not the PDI Act or associated regulations2. This reform has a number of advantages:

  • definitions can be amended, as required, through a Code amendment under the PDI Act rather than through legislative amendment processes;
  • definitions can be presented in tables, images and other practical means other than words only;
  • practical, plain-English language can be used instead of the more ‘legalistic’ language used in legislation.

Reflecting the increased ‘flexibility’ that the Code allows, the Land Use Definitions in Part 7 and Administrative Definitions in Part 8 of the draft Code are contained within tables3.

The structure and form of the Tables are applauded and are a significant improvement over current definitions under the Development Act.

The Tables, generally:

  • are clear and easy to understand;
  • are drafted in plain English;
  • define a large number of terms which are not defined under the Development Act and which are often the subject of legal disputes;
  • incorporate ‘inclusions’ and ‘exclusions’ in Land Use Definitions in Part 7; and
  • Administrative Definitions in Part 8 contain helpful illustration.

Whilst a great number of the new definitions are welcomed and will ensure that  the new planning system operates smoothly, there is room for clarification and improvement in the tables.  We provide specific comments in this attachment.

For further information regarding the draft Code, please contact:

Victoria Shute: vshute@kelledyjones.com.au

David Altmann: answers@developmentanswers.com.au

Cecilia Pascale: cpascale@kelledyjones.com.au

Emily Nankivell: enankivell@kelledyjones.com.au

 

1 See section 66(2)(c) of the PDI Act

2 See by way of contrast clause 13 of Schedule 1 to the Development Act and regulation 3 and Schedule 1 of the Development Regulations.   Whilst it is possible for a Development Plan to contain its own definitions which could override those in the Development Regulations – see Schedule 1 of the  Adelaide (City) Development Plan – this only occurred in a single Development Plan, with the remaining 71 Development Plans reliant on the Development Regulations.  Mandating in the PDI Act that the Code must contain land use definitions means that this must occur.

The form of the table is reminiscent of the Land Use Terms used in Victoria under the Planning and Environment Act 1987 (VIC), which table was put forward by many councils, planners and PIA as a good model for land use definitions. It is encouraging to see that this feedback has had results!