The Phase Three (Urban Areas) Code Amendment makes important updates to the Planning and Design Code

The Minister for Planning and Local Government recently amended the Planning and Design Code (Code) on the recommendation of the Environment, Resources and Development Committee of the Parliament. The Phase Three (Urban Areas) Code Amendment (Amendment) addresses interpretation of the Code with regard to classes of development excluded from public notification.

The three key changes are:

1. Interpretation of Notification Tables

Three new paragraphs have been inserted into Part 1 of the Code (Interpretation) under the heading of ‘Interpretation of Notification Tables’ and outline the approach for considering code assessed (performance assessed) development against the classes of development excluded from public notification.

The new paragraphs establish that:

“Where a development or an element of a development falls within more than one class of development listed under Column A, it will be excluded from notification if it is excluded (in its entirety) under any of those classes of development. It need not be excluded under all applicable classes of development.”

(emphasis added)

And further:

“Where a development involves multiple performance assessed elements, all performance assessed elements will require notification (regardless of whether one or more elements are excluded in the applicable notification table) unless every performance assessed element of the application is excluded in the applicable notification table, in which case the application will not require notification.”

(emphasis added)

The practical results of these changes are:

• Public notification of code assessed (performance assessed) development is undertaken of an “application” as a whole.
• In determining whether public notification is required, an application may be broken into “elements”, but each element must relate to a class of development excluded.
• If any element of the development does not fall within a class(es) of development excluded, then the whole of the application will need to be publicly notified.

2. ‘Minor nature only’ exclusion

The ‘minor nature’ exclusion has been amended across all zones to which it applies. Previously the exclusion was expressed in terms of “a kind of development … of a minor nature only…”.

It has since been amended to refer to:

“Development which, in the opinion of a relevant authority, is of a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development.”

The amended exclusion removes the expression “kind of development”.

The practical result of this change is:

• In applying the exclusion relating to “minor development”, an element(s) of the development may qualify to fall within the exclusion, or fall within other classes of development excluded

3. Excluded boundaries

Part 8 of the Code (Administrative Terms and Definitions) has been amended to include a definition for “excluded boundary” for notification purposes, being:

“…an allotment boundary where the allotment and the adjoining allotment are both part of the development site.”

The practical result of this change is:

• The new definition links to the notification tables for numerous zones (including the Business Neighbourhood Zone, the Established Neighbourhood Zone, the General Neighbourhood Zone, and the Neighbourhood Zone, among others), where an “excluded boundary” will not require notification.
• The change will principally apply to applications in such zones for new semi-detached or row dwellings, where the boundary walls are part of the application.

Implications for relevant authorities

These amendments are aimed at making the Code clearer, however we recognise at times determining “elements” and/or public notification requirements may still be complex tasks. Please contact us if you would like further guidance in undertaking such tasks.

For more specific information on any of the material contained in this article please contact Rebecca McAulay on +61 8 8210 1278 or rmcaulay@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmundayl@normans.com.au.