Planning and Design Code - Amendment for Phase 2 (Rural Areas)

23 June 2020

As foreshadowed by DPTI in the ‘Phase Two of the Planning and Design Code (Rural Areas): What We Have Heard – March 2020 report’ (as analysed by KJL here), numerous, significant amendments to Phase 2 of the Planning and Design Code will occur pursuant to section 73(7) of the Planning, Development and Infrastructure Act 2016 (‘the PDI Act’).

This section of the PDI Act requires the person or entity initiating a Code amendment (in this case, the State Planning Commission (‘the SPC’)), after undertaking public consultation on the amendment, to prepare a report to the Minister which must comply with Practice Direction 2 and include details of any changes proposed to a Code amendment.

It is this report, ‘Planning and Design Code – Amendment for Phase 2 (Rural Areas)’ that was published on 17 June 2020 (‘the Report’).

The Report contains the fine detail of the amended Phase 2 of the Code which the SPC has submitted to the Minister for approval ahead of the anticipated 31 July 2020 commencement date for Phase 2.

A summary of the amendments of particular legal significance, are below.

1.         Public Notification

1.1      As we identified in our 8-part series of “Making sense of the draft Planning and Design Code’ Papers, the relatively generic public notification triggers in the draft Code, had the potential to result in considerably more public notification being required under the Code than under current Development Plans.

Further, such provisions require public notification for developments which are entirely consistent with the intent of the relevant Zone.

Both of these outcomes are, arguably, inconsistent with the intent of the Planning Reform process and PDI Act which intends to emphasis community engagement and feedback on Code amendments and other policy-setting exercises, rather than on individual development applications.

1.2      The relatively generic nature of public notification tables has been addressed in the Report. In particular, all such tables will be amended to ensure that:

1.2.1     development envisaged within the Zone is not subject to notification except where acceptable standards for built from or intensity are exceeded and/or the development is likely to result in impacts on the amenity of adjacent dwellings located on land in another Zone;

1.2.2     development which, in the opinion of the relevant authority, is ‘minor’ will not require public notification. This accords with clause 2(g) of Schedule 9 to the Development Regulations 2008 and is an important inclusion to avoid unnecessary public notification from occurring;

1.2.3     development proposed on land adjacent to another Zone will not require public notification in all Zones except commercial and industry-type zones;

1.2.4     development which is presently identified as Category 1 in Schedule 9 of the Development Regulations 2008, will be excluded from requiring public notification under the Code;

1.2.5     public notification triggers based upon failure to satisfy boundary setbacks will be removed. However, building height triggers will be retained. This amendment is proposed as a result of recognition of a failure to comply with building setbacks alone and may not have detrimental impacts on neighbouring land owners and occupiers that building height, with a potential to cause overshadowing and visual impacts is a more appropriate trigger for public notification;

1.2.6     the demolition of heritage places (which we presume will include both local and state) will be subject to public notification. This amendment is considered appropriate to ensure that there is sufficient public input and representations into such proposals; and

1.2.7     non-residential development in the Neighbourhood Zone which exceeds DTS standards for gross leasable floor area will require public notification.

1.3      Notices will not need to be placed on land where performance assessed development is proposed in the Rural Zone, Remote Area Zone, Rural Aquaculture Zone, Horticulture Zone, Intensive Enterprise Zone and Coastal Waters and Off-Shore Island Zone.

2.         Land use definitions

2.1      As discussed in detail in Paper 1 of our series on the draft Code, the definitions contained within Part 7 of the Code are of significant importance to ensure that legal arguments concerning the interpretation and application of the Code are minimised.

2.2      We are pleased to see that a number of the issues that we identified have been considered and addressed by the SPC in the Report.

2.3      The following definitions will be amended in the manner explained below.

2.3.1     Ancillary accommodation – this definition is to be amended to allow for a maximum of two bedrooms and to exclude ‘dwelling’ from the definition.

These amendments are important as they mitigate the risk of legal arguments arising as to the status of ancillary accommodation and whether they can be occupied independently of their associated dwelling.

2.3.2     Tourist accommodation – to be amended to add campground to the list of exclusions. No amendments to this definition to better distinguish between dwellings and tourist accommodation will occur. To this end, the SPC states that:

tourist accommodation represents a type of dwelling that may continue to fit both definitions of tourist accommodation and dwelling. This is an issue that is difficult to avoid without also amendment to the definitions which in itself could open up other issues.”

The end result is that present Supreme Court case law authorities which require that tourist accommodation in the form of self-contained residences be classified as a dwelling will continue to apply to such forms of development under the Code. This will maintain current difficulties in the assessment of such developments, which must be assessed as dwellings, as well as controlling the long-term occupancy of such developments.

2.3.3     Workers’ accommodation – to be amended to allow it to apply to all transport-related projects. The definition will remain applicable only to temporary accommodation, thus ensuring a clear distinction from a definition of ‘dwelling’ and other forms of longer-term accommodation.

2.3.4     Agricultural buildings – to be amended to include frost fans and farm silos to the inclusions list. The effect of this is to ensure that such developments can be considered DTS and/or encouraged forms of development within rural and similar Zones.

2.3.5     Detached, semi-detached and row dwellings – are to be amended such that the words “site that is held exclusively with that dwelling” is replaced with “…comprising one dwelling on its own site and has a frontage to a public road” or similar. We welcome this amendment.

As discussed in Paper 1, there has, for a number of years, been a ‘disconnect’ between case law authorities on each of these definitions and practical planning assessment approaches.

Legally, these definitions have been interpreted such that the relevant dwellings must be located on their own allotment of land. In many instances, this requires a land division to be approved and to be undertaken before a built form application can be assessed.

Practically, however, it is often desirable that the built form application should proceed before the related land division. This is particularly so in the current economic climate where land divisions can be costly to undertake and developers rely on finance to do so, and lenders are not willing to finance residential developments unless and until the built form application is approved.

The proposed amendment to these definitions will allow built form applications to be assessed and approved prior to any related land division application.

2.3.6     Renewable energy facility is to be excluded from the definition of industry. This amendment will ensure that a renewable energy facility can be treated entirely separately from ‘industry’ which is particularly important given the authority of the many forms of renewable energy facility that occur in rural-type Zones where forms of industry may be listed as restricted or otherwise discouraged.

3.         Referrals

3.1      The referral trigger for energy generation and storage in part 9.1 of the Code is to be amended to apply only to energy generation and not energy storage. Further, the referral will be expanded to capture all energy generating plants irrespective of whether they are connected to the state’s power system or not. This amendment ensures that referrals are focussed on the activities that require EPA assessment and input only and to ensure that all energy generating plants are subject to the same referral requirements.

3.2      The referral for site contamination to the EPA is to be removed to allow for further consultation on the draft Practice Direction which is proposed to take effect when Phase 3 of the Code is implemented.

This will mean that there will not be any referrals for site contamination to the EPA on commencement of Phase 2 of the Code.

Relevant authorities will need to ensure that site contamination is very carefully assessed, that, where appropriate, reports and other information on site contamination is requested from applicants and careful regard is had to assessment timeframes to ensure that deemed consents do not arise.

Councils are encouraged to review the Zone-specific policy amendments and the spatial mapping sections which apply to them individually within the Report ahead of the commencement of Phase 2 of the Code.

For any questions on the Report or the Code generally, please contact:

Victoria Shute at vshute@kelledyjones.com.au or 08 8113 7104 or Emily Nankivell at enankivell@kelledyjones.com.au or 08 8113 7114.