Making sense of the draft Planning and Design Code — Part Six — Lower—Density Residential Development

27 November 2019

This Paper is Part Six 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 2 scheduled to end on Friday 29 November 2019.

Part One can be located  here. Part Two can be located  here. Part 3 can be located  here. Part 4 can be located  here.  Part 5 can be found  here.

In this Paper, we focus on lower densities of residential development (i.e. detached dwellings, semi-detached dwellings, row dwellings and other dwellings which are restricted by height limitations and/or constitute one dwelling per site) and how such forms of development are to be assessed and determined under the Code.

General Comments

Lower-density residential development is envisaged, in the sense that ‘accepted development’ and/or ‘deemed-to-satisfy’ assessment criteria are provided for lower-density residential development, in the following Zones within both Phases of the Code:

• Business Neighbourhood Zone;
• General Neighbourhood Zone;
• Greenfield Suburban Neighbourhood Zone;
• Home Industry Zone;
• Housing Diversity Neighbourhood Zone;
• Master-planned Suburban Neighbourhood Zone;
• Peri-Urban Zone;
• Remote Areas Zone;
• Residential Neighbourhood Zone;
• Rural Zone;
• Rural Intensive Enterprise Zone;
• Rural Shack Settlement Zone;
• Rural Living Zone;
• Rural Settlement Zone;
• Suburban Neighbourhood Zone; and
• Township Zone.

We note that not all of the above Zones contain ‘accepted development’ and ‘deemed-to-satisfy’ assessment criteria for new dwellings. In particular, the following Zones only contain such assessment criteria for minor residential structures and/or dwelling additions:

• Peri-Urban Zone;
• Rural Zone;
• Rural Intensive Enterprise Zone;
• Rural Shack Settlement Zone.

Councils may wish to consider whether additional ‘accepted development’ and ‘deemed-to-satisfy’ assessment criteria should be included in any of the above Zones.

Specific Observations

We have set out relevant ‘accepted development’, ‘deemed-to-satisfy’, ‘performance assessed’ and public notification criteria below.  We have highlighted typographical errors from the Code (including changes in capitalisation which may have an impact on interpretation) in green highlighting. Clearly, typographical errors must be addressed to ensure that the Code is interpreted and applied as intended.

The attached table contains provisions relevant to lower density residential development.  Please note that public notification is required in all Zones where “the site of the development is adjacent land to land in a different zone”. As previously discussed, this notification trigger warrants review, particularly where adjacent Zones are not sensitive to each other.

Common to all Zones listed above 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.

In the Business Neighbourhood Zone, the General Neighbourhood Zone, the Peri-Urban Zone, the Residential Neighbourhood Zone, the Rural Living Zone and the Suburban Neighbourhood Zone, the ‘accepted development’ and ‘deemed-to-satisfy’ criteria do not apply to many forms of residential development within the Character Area Overlay and the Historic Area Overlay. In many instances, numbers of residential developments requiring performance assessment will increase considerably from current Development Plan standards.

Further, in a number of Zones, the application of Overlays will render many lower-density forms of residential development as requiring public notification where they are either complying or Category 1 forms of development presently.

The outcome of this will be more complex assessment processes applying for relatively simple forms of development, and more administrative work required for Assessment Managers, Assessment Panels and their delegates than exists now.

The application of the Character Preservation District Overlays in the Peri-Urban Zone and other Zones is intriguing in that it does not exclude solar photovoltaic panels from constituting ‘accepted development’. Councils who are subject to the Character Preservation (Barossa Valley) Act 2012 and the Character Preservation (McLaren Vale) Act 2012 are advised to review the application of the abovementioned Overlay to developments in the Character Preservation Areas for their suitability.

Only the following Zones 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; and
• Master-planned Suburban Neighbourhood Zone.

Other Zones listed in the above table do contain height “triggers” for public notification, but they do not contain the strict and comprehensive “triggers” of the four Zones listed above. Councils should carefully examine whether they are satisfied with the public notification triggers within these and other Zones.

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

The manner in which maximum height restrictions for development is expressed is inconsistent within the abovementioned 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 renders the proposed development requiring public notification.

Height limits used to “trigger” public notification in other Zones (for instance the Rural Shack Settlement Zone) are expressed as being “2 building levels (over 9m) in height”. To add to the confusion, the Rural Living Zone expresses the following as requiring public notification: “building exceeding 2 building levels (over 9m) in height”.  Ideally, height limits and/or “triggers” for public notification should be expressed in consistent terms to avoid legal argument as to their interpretation.

Height limits in many residential areas, particularly coastal areas, are increasing significantly from present height limits. All areas which presently have height limits of less than 9 metres should be carefully compared against the Code. In the more “urban” residential Zones, for instance the Suburban Neighbourhood Zone, the maximum height for buildings expressed as assessment criteria is “3 levels and 12 metres”.

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 instance, in the Conservation Zone, the following is listed in Table 4 – Restricted Development Classification.

Due to the current legal definition of “detached dwelling”, the exclusion could simply read “Detached Dwelling in the Dwelling Subzone”. The remainder of the exclusion applicable to this subzone is superfluous.

Of particular note for rural areas is the lack of any accepted development, deemed-to-satisfy and performance assessed criteria for ancillary accommodation (i.e. granny flats). Given the often- common desire for rural farming families to accommodate aging relatives on the same allotment as an existing dwelling, this omission appears to be an oversight.

The abovementioned omission should be addressed so as to avoid unnecessary difficulty to applicants in achieving what is commonly accepted as entirely appropriate forms of development, subject to appropriate siting, bulk, height and scale limitations.

Further, we repeat our comments expressed in  Part One of our series as to how the definition of “ancillary accommodation” can be improved so that it achieves more practical outcomes whilst better avoiding the potential for legal challenge.

Lastly, the Limited Dwelling Overlay and/or the Limited Land Division Overlay are used as restricted development “triggers” in the Rural Zone and the Rural Horticulture Zone. These Overlays and their extent need to be carefully reviewed by affected councils to ensure that acceptable constraints on new dwellings in these Zones remain in place.

 

For further information regarding the draft Code, please contact:

Victoria Shute: vshute@kelledyjones.com.au

David Altmann: answers@developmentanswers.com.au