Miscellaneous Technical Enhancement Code Amendment now operational

Following a period of consultation and review, the Minister for Planning (the Minister) has now adopted the Miscellaneous Technical Enhancement Code Amendment (the Amendment) to the Planning and Design Code (Code). This follows a lengthy period of consultation and review, having been first initiated by the State Planning Commission (Commission) in December 2021 and subject to public consultation between July 2022 and September 2022.

The Amendment as adopted is available here. Our previous article on the original draft proposal is also available here.

The Amendment addresses a wide range of technical deficiencies or irregularities in the Code, the most significant changes being:

• additional and amended definitions;
• removal of certain superfluous and undefined terms;
• inclusion of further interpretive provisions;
• changes to certain public notification and referral triggers; and
• clarifying assessment pathways for certain forms of development.

Key changes are discussed below, and will be the subject of a Local Government Association workshop on 31 May 2023.

Definitions and Interpretation

There are a number of new and amended definitions inserted under Parts 7 and 8 of the Code, including (but not limited to):

Part 7 – Land use definitions

• Adult entertainment premises;
• Adult products and services premises;
• Child care facility;
• Educational facility;
• Function venue;
• Heavy vehicle parking;

and

Part 8 – Administrative Terms and Definitions

• Building height;
• Catalyst site;
• Direct overlooking;
• Excluded building;
• Excluded land division;
• High frequency public transit areas;
• Post height;
• Wall height.

These new and amended definitions largely address inconsistencies or gaps in previous definitions. Superfluous or additional terms are also stripped from the body of the Code in favour of defined terms.

Part 1 of the Code (Rules of Interpretation) has also been amended to clarify the application of spatially-based policies where they impact 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)

Another notable inclusion to Part 1 of the Code is clarification regarding the intended boundaries of Zones, Subzones and Overlays when viewed on SAPPA, as follows:

“Cadastral updates

The zones, subzones and overlays of the Code are referenced to the cadastral boundaries shown in SAPPA. In the majority of cases a zone, subzone or overlay boundary is directly aligned with a cadastral boundary. In the case of roads the zone, subzone or overlay boundaries are often aligned with the centreline of that road.

When cadastral boundaries are resurveyed and amended by the Surveyor General there are often boundaries that are, as a result, found to be incorrectly spatially located and as a result of the re-survey, are represented in SAPPA in a different geographic location.

Where the spatial application of the boundary of a zone, subzone or overlay is directly aligned or linked with the cadastre (being a parcel boundary or some other point or position within a parcel) and the cadastre is amended by the Surveyor-General resulting in the movement of a cadastral boundary, the spatial application of the boundary of the zone, subzone or overlay will also move proportionate with the amended cadastre. This ensures that the existing approved spatial application of the boundary of the zone, subzone or overlay with the cadastre is maintained.”

(Our emphasis)

This effectively suggests that the revised cadastral boundaries are to be used, in this instance, in preference to outdated or superseded zone, subzone and overlay boundaries where SAPPA is yet to be updated.

Exclusions from Notification (minor deviations)

The 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 Zone Table 5 Column B (notification table).

Additional text within the interpretation section of Table 5 is included 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.”

This is in addition to the “minor nature” class of development already included within column A of Table 5.

The Amendment seeks to broaden the scope of what can be excluded from public notification under Table 5, where previously the “exceptions” column B was not afforded the same degree of flexibility in interpretation. It does, however, reduce the certainty as to what classes of development should be notifiable and those that are, in all instances, intended to be excluded from notification.

Further information

Norman Waterhouse will be holding a workshop for the Local Government Association on 31 May 2023 exploring some of these changes under the Amendment in greater detail and highlighting important ramifications for relevant authorities.

Please contact Stephen Smith (Stephen.smith@lga.sa.gov.au) at the Local Government Association for registration details.

For more specific information on the upcoming workshop or 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.