Making sense of the draft Planning and Design Code — Part Seven — Higher—Density Residential Development

6 December 2019

This Paper is Part Seven 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, with consultation on Phase 3 scheduled to end on 28 February 2020.

Part One is  here. Part Two is  here. Part 3 is  here. Part 4 is  here. Part 5 is  here and Part Six is here.

In this Paper, we focus on:

• higher densities of residential development (i. residential flat buildings, townhouses and other dwelling forms which are permitted in higher residential yields and/or constitute 35 to 70 dwelling units per hectare or more, or a maximum area of 285 square metres per dwelling) and
• how such forms of development are to be assessed and determined under the Cod

General Comments

Higher-density residential development is envisaged, in the sense that ‘accepted development’ and/or ‘deemed-to-satisfy’ assessment criteria are provided for these forms of development, in the following Zones within Phase 3 of the Code (disregarding any applicable Overlays that may restrict density):

• Urban Renewal Neighbourhood Zone;
• Residential Neighbourhood Zone;
• Greenfield Suburban Neighbourhood Zone;
• Business Neighbourhood Zone;
• Master-planned Suburban Neighbourhood Zone;
• General Neighbourhood Zone;
• Housing Diversity Neighbourhood Zone;
• Suburban Neighbourhood Zone;
• Suburban Main Street Zone;
• Capital City Zone;
• Urban Neighbourhood Zone;
• Urban Corridor (Boulevard) Zone;
• Urban Corridor (Business) Zone;
• Urban Corridor (Living) Zone;
• Township Activity Centre Zone;
• Township Main Street Zone.

It is noticeable that the location of the notification tables in many Zones is inconsistent with the table located immediately after Table 4 – restricted development in some Zones, but after DTS/DPF assessment criteria in others.  Whilst this will not have a legal impact on development applications, the inconsistent location of tables may serve to cause confusion for applicants and should be corrected.

We set out the relevant public notification criteria in the table attached.  What we believe to be typographical errors in the Code are highlighted in green.

Of particular note, whilst the term “residential flat building” is a defined land use in Part 8 of the Code, there is extensive use of the undefined term “residential apartment building”. If this is an error, it needs to be corrected. If it is not, there is reason to provide an appropriate definition. Using undefined terms can create legal dispute about interpretation and serve to increase the risk of appeals against decisions by relevant authorities, particularly where the use of such terms determines assessment pathways.

Specific Observations

As discussed in other Papers, all relevant Zones, except the Capital City Zone, Suburban Main Street Zone and Township Main Street Zone, have a common notification ‘trigger’ where the site of the development is adjacent land to land in a different zone – this ‘trigger’ is more limited in the above Zones (though not the critical typographical errors in the Suburban Main Street Zone and Township Main Street Zone).

Common to all of the Zones above, with the exception of the Township Main Street Zone, is a public notification ‘trigger’ for development specified as “all other code assessed development” in Table 3 (the table of performance assessment criteria) in each Zone.   Do note, however, the significant number of typographical errors in Zone names in these triggers.   It is also to be observed that the Township Main Street Zone appears to be unique in not having the ‘all other code assessed development’ trigger and whether this was an oversight by the Commission.

As noted in Paper 6, in many instances, the number of residential developments requiring performance assessment will increase considerably from current Development Plan standards.

Further, in a number of Zones that are currently Category 1 forms of development, the application of the Technical and Numeric Overlays will require that many medium-density forms of residential development to undergo public notification.

The following Zones are examples of those that contain public notification ‘triggers’ where residential development exceeds setback, site area and other criteria:

• General Neighbourhood Zone;
• Greenfield Suburban Neighbourhood Zone;
• Housing Diversity Neighbourhood Zone;
• Master-planned Suburban Neighbourhood Zone.

Other Zones listed in the above table contain height ‘triggers’ for public notification, but they do not contain the strict and comprehensive ‘triggers’ of the four Zones listed.   Councils should carefully examine whether they are satisfied with the public notification ‘triggers’ for medium to high density residential development within these and other Zones.

Across all Zones, residential flat buildings are rarely determined to be a ‘deemed-to-satisfy’ form of development. Although this may be intentional to allow for those types of residential developments to be assessed on merit and (as relevant), publicly notified, the above table demonstrates that such rationale is not congruent. Councils should consider where they propose that higher density residential developments should be located and make submissions as to ‘deemed-to-satisfy’ criteria that would be suitable for residential flat buildings in those locations.

As with all Zones within the Code, DTS and DPF criteria are identical.  This has the potential to cause legal dispute over the merits of a performance assessment where DTS/DPF criteria is not met. It also has the potential to give rise to disagreement as to whether exceedances render a development seriously at variance to the Code, where they are significant.

The manner in which maximum height restrictions for development is expressed is inconsistent within the above Zones.  In most Zones listed in the table, with the exception of the Suburban Neighbourhood Zone, maximum building height for a dwelling is specified as being no greater than 2 building levels and 9 metres in height (see, for instance, DTS/DPF 4.1 in the General Neighbourhood Zone). A failure to meet this DTS/DPF criteria requires that the proposed development undergo public notification.

As stated in Part One of our series, the definitions of ‘detached dwelling’, ‘semi-detached dwelling’ and ‘row dwelling’ remain such that they must occupy their own allotment.  The manner in which the terms ‘detached dwelling’, ‘semi-detached dwelling’ and ‘row dwelling’ are used in the Code, does not reflect this legal requirement.

 

For further information regarding the draft Code, please contact:

Victoria Shute: vshute@kelledyjones.com.au

David Altmann: answers@developmentanswers.com.au