Planning Law Update

Planning Law Update

10 August 2022

The purpose of this update is to provide commentary and insights on:

  • two (2) recent judgments from the ERD Court interpreting and applying the Planning and Design Code;
  • amendments to Practice Direction 14 – Site Contamination Assessment 2021.

Garden College v City of Salisbury [2022] SAERDC 10 and Parkins v Adelaide Hills Council Assessment Manager [2022] SAERDC 12

Garden College is a full bench judgment from Judge Thomas, Commissioner Nolan and Commissioner Dyer and concerned a development application which was determined by the relevant authority to be a performance assessed development requiring public notification.

Garden College appealed this determination to the ERD Court pursuant to section 202(1)(b)(ii) of the Planning, Development and Infrastructure Act 2016.

The proposed development constituted an extension to an existing educational establishment including the relocation of two (2) existing transportable buildings, the installation of an additional two (2) transportable buildings, the relocation of an existing shade structure, reconfiguring and expanding an existing car park, modifying fencing and undertaking landscaping and stormwater works.

The site of the proposed development was adjacent to land comprising existing, residential land uses.  The car park works, modified fencing, landscaping and stormwater works were to be within three (3) metres of the boundary with this adjacent land.  The remaining elements of the proposed development were to be set back more than three (3) metres from the boundary.

The carparking requirement for the proposed development was 101 spaces.  47 spaces were to be provided on site.  A pickup/set down area was not provided within the site of the proposed development.  Traffic engineering evidence confirmed sufficient parking and pickup/set down areas were available on nearby public roads.

The issues in dispute between the parties related to whether the proposed development fulfilled all applicable criteria in General Neighbourhood Zone DTS/DPF 1.5 pursuant to Zone Table 5.  In particular:

  • Whether the boundary set back criterion in DTS/DPF 1.5(a) relate only to alterations and additions involving buildings?
  • Whether DTS/DPF 1.5(d) was fulfilled in circumstances where the required numbers of car parks and a pickup/set down area were not provided on the site, but where traffic engineering evidence confirmed that sufficient parks and pickup/set down areas could be provided on nearby public roads.

The relevant authority had determined that the proposed development did not satisfy DTS/DPF 1.5(a) and DTS/DPF 1.5(d) and that the proposed development was, therefore subject to public notification.  Garden College argued that the proposed development did fulfil this criteria and was, therefore, exempt from requiring public notification.

In upholding the decision of the relevant authority and concluding that the proposed development did indeed require public notification, the Court made the following findings:

  • the Planning and Design Code is a form of delegated legislation for the purposes of the Legislation Interpretation Act 2021. As such, it should be interpreted in a manner which best achieves the purpose and intent of the PDI Act and the Code.  Whilst a ‘practical’ approach to interpretation of the Code may be appropriate in certain circumstances, this practical approach cannot be used so as to rewrite the Code to achieve what may be considered a ‘sensible and practical outcome’;
  • applying this approach to the interpretation of Zone Table 5 and DTS/DPF 1.5:
    • Table 5 applies to ‘development’ only. On this basis, the Court found that as the elements of the proposed development within three (3) metres of the adjacent residential land did not, of themselves constitute “development”, Table 5 did not apply to them and these elements did not, of themselves, trigger the need for public notification;
    • the proposed development did not satisfy DTS/DPF 1.5(d) in that it did not provide sufficient off-street car parks, nor a pickup/set down area within the site of the proposed development. In making this finding, the Court determined that DTS/DPF 1.5(d) should be interpreted as not including car parks and pickup/set down areas on public roads in near proximity to the site.

This decision provides certainty to relevant authorities that the provisions of the Planning and Design Code should generally be applied as they are read.  Public notification triggers are limited to acts of ‘development’ and do not apply to elements of a development application which, of themselves, are not “development”.  Where a provision of the Code requires the provision of carparking spaces, pickup/drop off areas (or, indeed, other elements) on site, then this is strictly interpreted for the purposes of determining whether public notification is or is not required.

In a merits assessment of a development application, there may be good reason to depart from DTS/DPF criteria, however this must be assessed on a fact and degree basis having regard to the specific facts and circumstances of each development application.

Parkins v Adelaide Hills Council Assessment Manager [2022] SAERDC 12

This judgment from Commissioner Dyer was a merits appeal against a decision of the relevant authority to refuse planning consent for a 1:2 land division within the Rural Neighbourhood Zone and the Adelaide Hills Subzone.  The subject land comprised two (2) existing dwellings and the purpose of the division was to provide a separate allotment for each dwelling.

The key issue on appeal was the application of Subzone PO 2.1 and DPF 2.1 and Zone DTS/DPF 8.1 which provisions are set out below:

The allotments proposed by the division were 1,114m² and 4,745m² in area.  The larger allotment met Subzone DTS/DPF 2.1 and was considered appropriate.  The relevant authority refused the division on the basis of the smaller allotment.

In its defence of the refusal, the relevant authority submitted that:

  • the intent of the Subzone is to preserve larger alloment sizes;
  • the smaller allotment would be the fourth smallest allotment in the Subzone and was 45% below the nominated 2,000m² allotment size in both Zone DPF 8.1 and Subzone DPF 2.1(b)(i) and 65% below the calculated median for the purposes of DTS/DPF 2.1(b)(ii);
  • the proposed division was a battle-axe configuration, a form of division not prevalent in the locality and which would, if approved not be sympathetic to or contribute to the underlying pattern of division for the purposes of Subzone PO 2.1;
  • the approval of the proposed division would create a ‘precedent’ for more divisions to occur in the locality, leading to resultant pressure to approve future divisions.

In determining to approve the proposed division, the Court made the following findings:

  • satisfaction of DPF criteria is not required for the fulfilment of a PO.  Rather, in circumstances where a proposed development does not meet a DPF criteria, satisfaction of a PO can occur via other means;
  • the established pattern of allotments in the locality included allotments smaller than the minimum site specified under the Code with three abutting the subject site and two diagonally to the north;
  • on this basis:
    • the battle-axe allotment shape was not inconsistent with the current pattern of division within the locality and would, in fact, contribute to it;
    • the division would neither alter the density of development nor would it change the character and amenity of the area.
  • The smaller allotment maintained an appropriate frontage and it was considered that the division would only have the effect “of superimposing a new cadastre over the two lawfully existing dwellings” with “no external impacts”.

Practice Direction 14

The new version of Practice Direction includes some important amendments which will assist relevant authorities in applying it to new residential developments, being:

  • where a dwelling is proposed on an allotment which was created for residential purposes, site contamination documentation pursuant to regulations 32A and 32B of the Planning, Development and Infrastructure (General) Regulations 2017 is not required where the allotment is vacant and has not been used for any other purpose since its creation – regardless of whether any site contamination assessment occurred when the allotment was created;
  • where a land use is proposed to occur within an existing and/or approved building, a change to a more sensitive use only occurs when:
    • the existing use is primary production, commercial class 2 or industrial; and
    • the proposed use includes a more sensitive use at a building level that is above or below ground level;
  • if the proposed change in use is the addition of a dwelling to an existing farming development, then this is not considered to be a change to a more sensitive use;
  • land uses in Table 1 include ancillary and subordinate land uses.

The amendments to PD14 are of considerable assistance in many recurring development scenarios, particularly for mixed use developments which do not include dwellings at or below ground level and where a division occurred under the former Development Act 1993 and the relevant authority determined, in their discretion, not to require formal site contamination reports.

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