Relevance of a departure from a DPF

We recently appeared for the City of West Torrens Assessment Manager in an ERD Court hearing where a development application for two dwellings on an allotment in Fulham was refused.

In one of the first hearings of its kind under the P&D Code, it raised the following interesting issues:

1. How much weight should be given to departures from Designated Performance Features (DPF) in a performance assessed development?
2. How do you determine what is low-density residential development?
3. What is the appropriate order in which consents should be sought, i.e. is it ok to proceed with the built form first, or is a land division application first needed?

Significance of departure from Designated Performance Features

One of the reasons the appeal was dismissed was the significance of departure from the DPF associated with the site areas and frontage. The Court referred to the decision of Parkins v Adelaide Hills Assessment Manager [2022] SAERDC 12 where it was said:

whilst any DPF numeric value is not to be read as a minimum, mandated, requirement, a “quantum departure” would likely be a “… flag to the relevant authority…” that the particular facts and circumstances of the matter would need to be carefully weighed up to ensure a planning consent is merited.

However, Commissioner Rumsby went one step further in the subject case stating:

the greater the variance the more difficult it will be to establish suitable conformity with the intended outcome’.

With respect to the proposed development, the Court held that the 27% departure from the minimum frontage DPF was ‘not trifling or slight’, and that the 15% departure from the minimum site area DPF was ‘a marked, or notable, departure’. These departures were considered to be at odds with the existing pattern of development, which was decisive, with the Court concluding:

the consequences of the significant departures from the existing settlement pattern, in particular the street frontage width, per SNZ DPF 2.1, are such as to fail the Zone POs 2.1 and 3.1, and DO 1.

What is low density residential development?

The POs and DOs in the Suburban Neighbourhood Zone (SNZ) referred variously to “Low density housing”, “low density residential development” and “low-density suburban neighbourhood”. None of these terms are defined in the Code and the appellant’s expert opined that they should be interpreted consistently with the defined term “low net residential density” which is defined as “ less than 35 dwelling units per hectare”.

On the appellant’s argument this would mean allotments in excess of 285 square metres were considered “low density”. The Respondent argued that such an interpretation would be irrational in circumstances where the DPF had a minimum site area of 420 sqm. Further, it was argued that the term “low net residential density” was not referred to in the SNZ and only relevant when it came to master planning purposes for large scale land divisions.

The Court agreed, stating:

What is sought is housing consistent with an existing pattern of settlement as informed by the SNZ policy settings, including DPF 2.1 which sets a ‘target’ minimum dwelling density of 420m2 per dwelling site, subject to its context. The defined terms “net low residential density” do not apply to this matter

Built form or land division?

Under the now repealed Development Act 1993, through cases such as City of Port Adelaide Enfield v Moseley [2008] SASC 88 and Paior v City of Marion & Ors (No 3) [2014] SAERDC 42 when there was an intent to divide land, the correct approach generally involved assessing the land division either before or as part of the same application for the built-form proposed on the land. This was particularly so where there were procedural ramifications for dwelling types.

The rationale for such an approach was summarised by Debelle J in Moseley:

Good town planning requires land to be divided in an appropriate manner consistent with relevant planning principles. Logically, the division of land comes before the approval of any development of the land. If a development is approved before the approval of the land division, it has a real potential to put undesirable constraints upon a planning authority considering whether it is proper to grant consent to the proposed land division. If that is not the position, there is a real potential for undesirable development.

With the introduction of the P&D Code there is an argument to suggest this position has shifted. This point was not argued in the subject hearing, with the Court content to proceed to assess the dwellings on the land as detached dwellings, even though they failed to meet the Code definition due to each dwelling not being a “dwelling on its own site“.

In the subject appeal, no application to divide had been lodged. Relevantly, if the dwelling application had been approved, a subsequent development application seeking to divide the land would likely have been Deemed to Satisfy.

DTS / DPF 1.1 of the General Development Policies provided that the division of land would be Deemed to Satisfy where ‘[d]ivision of land satisfies (a) or (b):

• reflects the site boundaries illustrated and approved in an operative or existing development authorisation for residential development under the Development Act 1993 or Planning, Development and Infrastructure Act 2016 where the allotments are used or are proposed to be used solely for residential purposes;
• is proposed as part of a combined land division application with deemed-to-satisfy dwellings on the proposed allotments.

Therefore the logical approach for the applicant was to lodge a built-form application prior to any consequential land division. A by-product however of doing so, is that no assessment would occur against the land division module of the General Development Policies, which seems to carry with it some of the risks highlighted in the extract from Moseley above.

In the subject appeal, it did not materially matter that a land division application did not proceed first, but it is not difficult to think of scenarios where it would be appropriate to insist on a land division application occurring prior to a land use application, particularly where community title division is proposed, or procedural ramifications followed from the classification of dwelling-type.

Take Home Messages

• The significance of departure from DPFs is very relevant to the assessment of the associated PO;

• Dwelling density is not defined in the Code, but is context specific; and

• whether a built form application must be accompanied or preceded by a land division application remains fact dependent.

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au.