Draft Planning and Design Code — Updated report from the State Planning Commission

16 January 2020

Subsequent to the close of submissions on Phase Two of the draft Code, on 23 December 2019, the State Planning Commission (“the SPC”) has published a paper titled “Planning and Design Code Please 3 (Urban Areas) Code Amendment – Update Report” (“the Report”).

The Report provides an overview of the consultation process and how the SPC intends to respond to submissions received in response to Phases Two and Three of the Code.

Importantly, the SPC has proposed improvements to the Code as follows:

• amendments to the building height policy in Activity Centres and Retail Development to ensure consistency between the zone policy and Technical and Numeric Variations (“TVNs”);
• re-consideration of the location of retail development to allow some “Out of Centre” retail development;
• improved airport policies and the safeguarding framework in the Code by continuing to work with airport stakeholders to ensure that the policies and framework are contemporary and reflects current requirements;
• all national parks in the State to be included within the Conservation Zone;
• improved and updated flood mapping with opportunities to update flood mapping data over time. It appears that the SPC will include additional flood data into the Hazards (Flooding) Overlay where councils provide this data to DPTI, even where this information is not currently included in a Development Plan. If councils have flood data that has not yet been provided it to DPTI, we recommend they now contact DPTI;
• changes to the zoning of some residential land currently located in the Neighbourhood Centre Zone to the Suburban Neighbourhood Zone where:
  • Historic Area or Character Area Overlays apply;
  • the management of sloping land is required,
  • the land division pattern is for larger allotments and/or wider frontages; or
  • current zoning does not seek increased housing density or diversity;
• the inclusion of council drafted Historic Area Statements and Character Area Statements in the Code to guide development. A copy of statements prepared for relevant councils can be obtained from Resources on the SA Planning Portal;
• additional policies to be included in the Local and State Heritage Places Overlays to guide development on allotments adjacent to State and Local heritage places;
• enhanced deemed-to-satisfy pathway for land divisions in residential zones in the Code;
• clarification and confirmation that:
  • the Significant and Regulated Tree Overlay will apply to all significant and regulated trees in metropolitan Adelaide, mirroring the current area covered by the Development Act 1993;
  • it is intended that the current assessment process for significant and regulated trees will be retained; and
  • significant and regulated trees specifically identified in Development Plans are to be included in the Code and identified through mapping.
• re-naming of the Peri-Urban Zone to better reflect the existing and envisaged land uses in the Zone. No further information has been provided in regard to what the new name for the Zone will be;
• correction of identified irregularities in the classification tables in the Code. Corrections to the classification tables will not be completed until the Phase Three consultation is concluded. However, updated classification tables that include corrections to some of the irregularities identified are available here;
• improvements to the Code to address irregularities. A “Minor Code Drafting Improvements Table” has been prepared to identify irregularities and opportunities for improvement and is available in Appendix 1 of the Report;
• amendments to overlays to improve assessment pathways for accepted or deemed-to-satisfy development. Particularly to ensure that assessment pathways are not complicated for simpler developments such as dwellings, outbuildings, fencing, verandahs and pools;
• amendments to the public notification tables to reduce unnecessary notification. It is intended that notification tables in the Code will be amended to:
  • list specific classes of development that are excluded from notification, rather than exclude all development and list the exceptions;
  • specify which developments fall within the ambit of clause 5(2) of the State Planning Commission Practice Direction 3 – Notification of Performance Assessment Development does not require notification;
  • exclude minor/low impact uses envisaged in zones that do not exceed building height or interface criteria; and
  • exclude envisaged uses in zones (for example, a shop in a centre zone) where the site of the development is not located adjacent to a dwelling in a Neighbourhood Zone; and
•  improvements to the TVNs by working with councils to ensure that TVNs are consistent with current Development Plan requirements and apply to all relevant/correct areas.

The Report indicates that the timelines for commencement of Phases Two and Three of the Code will continue as planned and also suggests that the above amendments will occur for Phase Three but not for Phase Two.

This means that Phase Two councils will need to work with a Code that still includes many clear and significant mistakes and irregularities between April 2020 and 1 July 2020.  This is not an acceptable outcome and poses significant litigation and other risks for Phase Two councils.

We also query whether the extent and significance of amendments proposed and the apparent intent to introduce them into Phase Three of the Code without undertaking further public consultation will give rise to risks of judicial review in the implementation of Phase Three.

Of interest is that the Planning, Development and Infrastructure (Commencement of Code) Amendment Bill 2019, has passed the Legislative Council and is in the House of Assembly for debate. The Bill seeks to remove the 1 July 2020 deadline from the Planning, Development and Infrastructure Act 2016 and replace it with “a date to be designated”. If the Bill is passed the timelines for the commencement of the Code for Phases Two and Three can then be delayed to a date designated by the Minister.

Given the significance of the identified errors in the Code, the serious implications posed to Phase Two councils if Phase Two is inadequate, the number of amendments to be made to the Code to meet the Report’s intentions and the fact that 1 July 2020 is a relatively short deadline to correct a document as detailed, lengthy and important to our State as the Code, we hope that the Bill passes the House of Assembly and the transition dates for Phases Two and Three are delayed appropriately.

We will continue to keep you informed of further developments in this area.

Please contact Victoria Shute on 08 8113 7104 or vshute@kelledyjones.com.au.