Improving the operation of the Planning and Design Code: Miscellaneous Technical Enhancement Code Amendment

The State Planning Commission (Commission) initiated an amendment to the Planning and Design Code (Code) through the Miscellaneous Technical Enhancement Code Amendment (the Proposed Amendment) in December 2021.

After preliminary engagement, the Proposed Amendment has now commenced a period of public consultation, concluding on 23 September 2022. The full Proposed Amendment is available for review and comment via the SA Planning Portal.

The Proposed Amendment seeks to achieve a number of outcomes in relation to the technical operation of the Code. These include:

1. improving policy clarity and interpretation;
2. ensuring greater consistency of alignment (of policies) with the Code drafting principles;
3. improving system efficiency and procedural matters;
4. reviewing classification tables and assessment pathways (with a focus on common and minor forms of development);
5. improving linkages between Code policies (including missing or additional policies);
6. addressing unintended policy consequences; and
7. updating the Rules of Interpretation to improve understanding of the Code’s operation.

The intention behind the Proposed Amendment is to ensure that relevant authorities and members of the public can clearly and transparently understand the principles relevant to planning decisions.

Proposed changes to the Code

The Proposed Amendment seeks to generally enhance the application and interpretation of the Code.

Among the most significant changes proposed are:

Definitions and Interpretation

The Proposed Amendment seeks to improve the Land Use and Administrative Definitions (Parts 7 and 8) of the Code by:

• reviewing and implementing greater consistency in the application of “inclusions” and “exclusions”;

• including new definitions for terms that are used in the Code but which are not currently defined, such as ‘heavy vehicle parking’, ‘function venue’, ‘post height’ (among others); and

• clarifying ambiguous matters such as ‘ancillary accommodation’, ‘tourist accommodation’, ‘building height’, ‘wall height’, and ‘building line’ (among others).

Additional guidance within Part 1 of the Code (Rules of Interpretation) is also proposed to clarify the interpretation of spatially-based policies where they apply to only a portion of a development site, as follows:

“Application of Spatially Based Policies and Rules

Where a zone, subzone, overlay or technical and numeric variation (TNV) does not spatially apply to the whole of a site that is the subject of the development application, the spatially based rules of the zone (including assessment pathway exclusions), subzone, overlay or TNV are only applicable to the portion of the site to which the zone, subzone, overlay or TNV spatially covers. Reference to the South Australian Property and Planning Atlas of the SA planning database will be made to determine whether a zone, subzone, overlay or TNV is relevant to the site of the proposed development application.”

(Our emphasis)

Exclusions from Notification (minor deviations)

The Proposed Amendment seeks to reduce the number of performance assessed applications subject to public notification by including a wider discretion for consideration of minor deviations from the criteria currently included within Table 5 (notification table). Additional text within the interpretation section of the Table is proposed as follows:

“A relevant authority may determine that a variation to 1 or more corresponding exclusions prescribed in Column B is minor in nature and does not require notification.”

The Proposed Amendment would effectively broaden the scope of what can be excluded from public notification under Table 5, where currently the “exceptions” column B is not afforded the same degree of flexibility in interpretation.

Technical corrections (superfluous terminology and typographical errors)

The Proposed Amendment addresses numerous instances of erroneous or superfluous terminology within the assessment provisions across Zones, Subzones and Overlays. Any typographical errors are also corrected.

Examples include, among others:

• correcting “discrete” to “discreet” with reference to unobtrusive garage and carport positioning;
• replacing “storey” with the defined term “building level”;
• replacing “southern boundary” with the defined term “south facing”.

Overlays (Referral requirements / DTS and Accepted Development Pathways)

The Proposed Amendment also reviews Overlay policies from a number of different perspectives, including but not limited to:

• reviewing referral requirements to ensure that only proposed development that directly relates to the purpose of the referral needs to be referred (for instance, by removing unnecessary ‘self’ referrals to the South Australian Housing Authority (SAHA) for SAHA applications in the Affordable Housing Overlay); and

• reviewing Overlay policies to ensure that, where appropriate, an Accepted or Deemed-to-Satisfy pathway may be maintained for “common” forms of development such as dwelling additions, outbuildings or carports (for instance, by removing certain Overlay exclusions from Tables 1 or 2).

Consultation

An eight-week consultation period is currently underway, concluding in September.

The changes proposed within the Amendment will be beneficial to the implementation of the planning system in South Australia, although many of the proposed additions could require further refinement.

Relevant authorities and councils are encouraged to review the proposed Amendment and make representations as appropriate.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.