Environment and Planning – Local Government Roads and the Draft Design Standard: Driveway Crossovers for Residential Development

As foreshadowed earlier this year, the State Planning Commission (Commission) has now released its proposed drafting of ‘Design Standard 1 – Driveway Crossovers for Residential Development’ (Design Standard) together with the accompanying amendment to the Planning and Design Code (Code Amendment).

A consultation period is presently underway until 14 November 2023, with the documents available for review here.

We have previously discussed the purpose and function of design standards in an earlier article (available to read here). The purpose of this article is to highlight some key issues for consideration during the consultation period.

Importantly, insofar as the Design Standard will work in conjunction with amendments to the Local Government Act 1999, the Design Standard will have significant implications for the management of Council roads and road assets, including street trees.

Draft Design Standard – Overview

The draft Design Standard sets out to prescribe the minimum requirements for driveway crossovers in relation to ‘residential development’.

‘Residential development’ is defined as including development ‘involving’:

• detached and semi-detached dwellings;
• row dwellings;
• residential flat buildings;
• group dwellings;
• the division of land to accommodate new housing; and
• domestic outbuildings.

Undefined dwelling types would seem to be excluded.

Pursuant to clause 6, the requirements of the Design Standard are applicable to all development applications for planning consent and/or land division consent involving ‘residential development’, except for:

• residential development involving more than 50 dwellings within a single development site;
• residential development of a scale that must be serviced by heavy vehicles that are a Medium Rigid Vehicle or larger (such as residential flat buildings requiring on-site waste collection);
• mixed-use development with a residential component; and
• [development] within the Hazards (Flooding – General) Overlay or Hazards (Flooding) Overlay of the Planning and Design Code).

It appears the intention is that any ‘residential development’ that is “accepted development” (requiring building consent only) will not be subject to the Design Standard.

Once adopted, the Design Standard will form part of the planning rules under the Planning, Development and Infrastructure Act 2016 (PDI Act). It will also be a relevant consideration in the context of a development application for land division consent under s 102(1)(c) or (d) of the PDI Act, or an encroachment consent under s 102(1)(e).

The Design Standard will further give effect to the (yet to be commenced) amendments to the Local Government Act 1999 (SA), including section 221 and new (and as yet un-commenced) section 234AA.

Key provisions of the Design Standard

The Design Standard adopts a similar format to the assessment provisions of the Planning and Design Code, with key qualitative ‘Design Principles’ informed by quantitative ‘Design Requirements’. There are also ‘Technical Drawings’ that provide additional context to the Design Principles and/or the associated Design Requirements.

Under proposed clause 5 of the Design Standard, for a development proposal to comply with the Design Standard, the relevant authority must be satisfied that ‘all relevant Design Requirements and Design Principles are met’, but ‘the relevant authority may determine that one or more of the Design Requirements and/or Design Principles policies are not relevant to a particular development’ (our emphasis).

It would seem that a relevant authority does not have discretion to approve so-called ‘minor variations’ to the Design Standard, or to make a subjective judgment as to whether a particular Design Requirement or Design Principle is, or is not, relevant in a given case. It may be of benefit if this was made clearer.

It would also be of benefit if the 'Interpretation’ section in clause 7 made it clearer how Design Requirements and their corresponding Design Principles interrelate. Clause 7 says that Design Requirements must be met to satisfy the design standard, whereas it does not say the same for Design Principles. This raises a number of questions as to the legal status of Design Principles: Are they non-mandatory? Does satisfaction of a Design Requirement automatically result in satisfaction of the corresponding Design Principle? Or is it possible that one could meet a Design Requirement but nevertheless fail to meet the corresponding Design Principle?

Given the stated object of the Design Standard is to ‘prescribe standards’, one may query the purpose of including qualitative requirements which, by their very nature, are not prescriptive.

In any case, the Design Principles and Design Requirements address a multitude of technical and design issues including – among other things – streetscape amenity, retention of street trees as well as regulated trees, avoidance of damage to ‘common infrastructure’, ‘safe and convenient’ access and egress requirements for specific types of vehicle, and intersections with footpaths.

These provisions will require a relevant authority to undertake a thorough and detailed process of assessment at the planning and/or land division consent stage, including technical assessment of engineering and infrastructure-related matters.

Council staff are encouraged to carefully review the specific Design Requirements in terms of their accuracy, completeness and practicality.

For example, insofar as Design Requirement 1.2(a) refers to replacement of ‘upright kerb and gutter’, should this be less specific so as to include ‘rollover’ kerb and gutter and any others?

Are Design Requirements 2.1 (design to accommodate a B85 Design Vehicle) and 5.2 (satisfaction of sight distance requirements) appropriate, insofar as they would seem to require traffic engineering expertise which may be beyond the competency of many accredited planning professionals?

Is the Table 1 in Design Requirement 1.6 satisfactory, in so far as some common infrastructure items are not included (bins, post-boxes, telephone boxes, fire hydrants and so on), and also insofar as the relevant setback from a regulated tree appears to cross-reference AS 4970:2009 which may require expert arboricultural input?

Other technical and drafting issues are likely to be revealed upon further scrutiny.

Local Government Act 1999 implications

The intent is that changes to the Local Government Act 1999 (LG Act) will commence operation at the same time as the Design Standard. The legal effect of these changes would seem to be that:

1. A proposal that complies with the Design Standard will not require an authorisation under section 221 of the LG Act.
   
2. A proposal that does not comply with the Design Standard must involve consultation with the Council’s CEO. However, the CEO’s advice is not binding and, therefore, a non-compliant proposal may still be approved by a relevant authority under the PDI Act.
   
3. Having said this, the effect of new section 234AA(1) seems to be that a person who proposes to alter a road must comply with a Design Standard. As such, it would seem that a non-compliant proposal approved under the PDI Act cannot be implemented without breaching the LG Act (where the obvious remedy would seem to be a direction under section 262 of the LG Act to stop work and to take action to remedy the contravention).
   
4. Under clause 5 of the Design Standard, a person with the benefit of a development approval involving modification of a Council road must notify the Council at least 10 business days in advance of intended commencements of works. Failure to comply with this notification requirement would also seem to be a breach of s 234AA of the LG Act.
   
5. Because a s221 authorisation is not required on approval of a development that complies with the Design Standard, the Council will have no ability to impose requirements as to construction materials or methodology, public liability insurance and so on. This would seem to be a gap in the scheme as presently formulated.
   
6. In so far, as the flowcharts attached to the Design Standard seem to suggest that the relevant authority may apply a note advising the applicant to notify the Council, at which point the Council ‘would ensure technical elements…are to an appropriate standard and matters such as insurance, appropriate contractor to construct etc are covered off’, this would appear to be aspirational at best, because the Council would have no leverage to impose any requirements and, further, there are no consequences for a failure to observe such requirements.

Code Amendment

The Code Amendment seeks to modify existing provisions under the General Development Policies to take into account the operation of the Design Standard (if adopted).

Those policies affected include the ‘Design’ and ‘Design in Urban Areas’ policies, the ‘Housing Renewal’ policy and the ‘Transport, Access and Parking Policy’, where those policies already address matters relating to driveway crossovers. Existing DTS/DPF policies will be modified to include reference to the Design Standard, such that compliance with the Design Standard will result in compliance with the relevant DTS/DPF provision/s.

However, an obvious difficulty arises in circumstances where a relevant authority grants a planning consent that is at variance with the Design Standard. In this scenario, there would seem to be a legislative disconnect between s 221 of the LG Act on the one hand – which says that no further permission under the LG Act is required – and s 234AA on the other hand, which says that the Design Standard must be complied with. In these circumstances, to avoid administrative confusion, it would seem that the Design Standard is missing an important mechanism that may allow variances from the Design Standard to occur where there is concurrence from the Council or the CEO.

Consultation

We encourage councils to participate in consultation in relation to the draft Design Standard, in particular with reference to its intended (potentially more onerous) impacts on the assessment requirements for planning and land division consents, as well as its interaction with sections 221 and (as yet uncommenced) s234AA of the Local Government Act 1999.

For more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.