Practice Direction 15: Building Envelope Plans

A recent release from the State Planning Commission (Commission) has added further detail to the assessment of building envelope plans (BEPs) through Version 3 of the State Planning Commission Practice Direction 15 (Building Envelope Plans) 2021 (Practice Direction 15).

In light of this updated version of Practice Direction 15, and the recently published Housing Roadmap that places special emphasis on the streamlining of approvals, it is worth exploring where and how BEPs apply in the assessment of land division applications for “Master Planned” zones under the Planning and Design Code (Code).

Version 3 of Practice Direction 15 is available here.

Background

BEPs, where adopted, may be relevant to the assessment of land division applications within master planned zones in the Code, specifically the:

• Master Planned Neighbourhood Zone;
• Master Planned Renewal Zone; and
• Master Planned Township Zone.[1]

Master planned zones collectively promote expansion of communities through the provision of a diversity of housing types and associated services, facilities and open space. Against this context, BEPs may provide for building construction criteria and limitations within a proposed land division,[2] such as setback distances, height limits, floor levels, and building footprints. Where there is no BEP in place, these limitations are set under relevant provisions in the Code.

A developer may submit a BEP for assessment by a designated authority and eventual adoption by the Commission as part of a development application for the division of land. Once adopted, the assessment of the land division application is therefore implicated by the requirements set out in the BEP.

BEPs apply separately to the requirements for ‘accepted dwellings’ in certain zones, as under Schedule 6A of the Planning, Development and Infrastructure (General) Regulations 2017 (Regulations), which we have previously explored in detail here.

Regulation 19A

Regulation 19A(1) prescribes that a “designated authority” may, on application, approve a BEP that has been prepared in accordance with Practice Direction 15 (see commentary below). The designated authority may also vary a BEP on application by the same person or body that originally prepared the BEP, pursuant to regulation 19A(2).

Pursuant to regulation 19A(5), a “designated authority” means an Assessment Manager.

Practice Direction 15

Practice Direction 15 establishes the criteria for assessment of a BEP by a designated authority, as well as further procedural requirements in assessing and publishing the BEPs.

Practice Direction 15 Version 1 (published 19 March 2021) and Version 2 (published 27 May 2021) are largely identical, but for the inclusion of cross references to the Development Act 1993 (Development Act) within Version 2, which allowed for the Practice Direction to apply to transitional applications.

The current version, Version 3 (published 27 June 2024), has subsequently removed those cross references to equivalent provisions of the Development Act, reflecting the passage of the last ‘legacy’ development applications. Practice Direction 15 now refers exclusively to processes under the Planning, Development and Infrastructure Act 2016 (Act).

Timing – Clause 5

Prior to an application for assessment of a BEP being made, all proposed allotments must have been granted planning consent (pursuant to section 102(1)(a) of the Act).

Land division consent may be granted prior to an application for assessment of a BEP, although this is not mandatory. Likewise, the proposed allotments may have been created as allotments under the Real Property Act 1886 by way of a deposited plan of division at the Land Titles Office, but this is also not mandatory.

Form – Clause 6

The requirements for the form of a BEP are extensive and detailed.

Mandatory requirements under Clause 6(1) include:

1. details of the planning consent for all proposed allotments;
2. proposed building setback distances from the primary and secondary street boundaries, side boundaries, and the rear boundary of the proposed allotments;
3. boundary wall heights and lengths;
4. north point;
5. scale;
6. position of any existing buildings intended to be retained;
7. location of any regulated trees located wholly or partially within a proposed allotment (including any tree protection zone as applicable);
8. existing trees or vegetation to be retained; and
9. all existing registered easements.

The mandatory scale requirements are detailed further in clause 6(3).

Discretionary details are contained under clause 6(2) and include:

1. building heights;
2. private open space;
3. vehicle access points;
4. locations for stormwater management infrastructure;
5. finished floor levels;
6. existing ground contours;
7. any proposed retaining walls;
8. location of proposed activity centre; and
9. any other items relevant to the assessment of a BEP under the Code.

Criteria for assessment – Clause 7

The designated authority is obligated to assess a BEP on its merits against any relevant desired outcomes or performance outcomes within any applicable zone,[3] subzone or overlay, and any relevant general development policies under the Code.

Publication – Clause 8 / Regulation 19A(3) and (4)

The Attorney-General’s Department ultimately has the final say on the execution of the BEP, which must be submitted to the Chief Executive of the Department[4] to then be published on the SA Planning Portal.[5] The BEP will not be operational unless both have occurred, pursuant to regulation 19A(3).

The Chief Executive has the discretion to refuse to publish a BEP that they consider to be inconsistent with Practice Direction 15, in accordance with regulation 19A(4).

If a BEP is amended or varied, the latest published version will apply for the purposes of the Code, the Regulations and the Act.

Implications for Master Planned Zones

Certain dwelling forms may be classed as accepted development (i.e. planning consent not required) within Master Planned zones provided that they conform with the requirements of a BEP (in addition to any other accepted development criteria as may apply for the zone). The careful assessment of a proposed BEP on its merits against the Code is therefore of paramount importance when its conditions may have extensive impacts on built form and character within the zone.

Key points of interest

Councils should be aware that the powers of an Assessment Manager in regulation 19A and Practice Direction 15 are exercisable only by the Assessment Manager and cannot be delegated. This is because, in exercising these powers, the Assessment Manager is acting in a specific capacity as a designated authority (as defined by regulation 19A(5)) and not as a relevant authority (as defined under section 82 of the Act). Therefore, the delegation power under section 100 of the Act, which allows for delegation of the powers of a relevant authority, does not apply.

Assessment Managers should take careful note of the requirements of regulation 19A and Practice Direction 15 in undertaking assessment of BEPs as they may apply within their jurisdiction (be it part of a RAP or CAP).[6]

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

[1] Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 19A(5).

[2] Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 19A(5).

[3] In practice, BEPs can only apply to master planned zones, so the relevant provisions will be the provisions of those zones, in addition to any subzones, overlays, or general development policies that may also apply.

[4] Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 19A(3)(a).

[5] Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 19A(3)(b); State Planning Commission Practice Direction 15 (Building Envelope Plans) 2021 cl 8(1).

[6] Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 19A(5).