Miscellaneous Technical Enhancement Code Amendment

Finalisation of the Miscellaneous Technical Enhancement Code Amendment

The Miscellaneous Technical Enhancement Code Amendment (MTE Amendment) initiated by the Commission pursuant to s73(2)(a) of the Planning, Development and Infrastructure Act 2016, has now been approved. A consolidation of the Planning and Design Code incorporating the MTE Amendment is expected to be published shortly.

The MTE Amendment was “primarily focused on addressing technical and operational elements within the Code, as opposed to changing policy intent or outcomes.” The MTE Amendment comprises the first global review of the Code since its implementation and sought to address a range of practical inconsistencies across the Code policies and to improve policy clarity and interpretation.

Key changes which have been introduced by the MTE Amendment include the following:

1.       Clarification of application of zones, subzones, overlays and TNVs

The MTE Amendment clarifies the application of a zone, subzone, overlay or TNV policy where a spatial layer applies to only part of an allotment the subject of a development but does not cover the entire development site. In such a case, the relevant policy will only apply to the portion of the development site covered by that spatial layer.

2.       Restricted development classifications

The MTE Amendment sought to remove some development from the Restricted Development category where the development did not warrant assessment by the Commission. The Commission adopted two principles to “guide and assist in what classes of development should be listed asrestricted’”:

Principle 1 – Warrants assessment by the Commission to consider the strategic implications and impacts. For example, large-scale out-of-centre retail warrants State assessment as it may have a broader impact on the form and pattern of development across a region and could disrupt the role of activity centres in providing equitable and convenient access to shopping, administrative, cultural, entertainment and other facilities.

Principle 2 – Requires detailed investigations and assessment beyond that provided through a performance assessed pathway, and may require consideration of other documents outside of the Code. For example, special industry has the potential to endanger or detrimentally affect the health of people and property and would therefore benefit from a more detailed assessment process.

Against these principles types of development which should be excluded from the restricted development category were determined. The following development will no longer be restricted development:

  • “Industry” within the Employment, Strategic Innovation, Suburban Activity Centre, Capital City, City Main Street, Local Activity Centre, Suburban Main Street, Township, Township Activity Centre, Township Main Street and Urban Activity Centre Zones (noting “Special Industry” has been introduced as restricted development in each of these Zones);
  • “Dwelling” within the Employment (Bulk Handling) Zone and Rural Intensive Enterprise Zone;
  • “Dwelling” and “Land division” within the Deferred Urban Zone, Resource Extraction Zone and Rural Shack Settlement Zone;
  • “Waste reception, storage, treatment or disposal” and “wrecking yard” in the Employment Zone;
  • “Excavation” and “Filling” within the Hills Face Zone (note that “Landfill” remains restricted development).

Interestingly, the version of the MTE Amendment which was subject to consultation proposed to remove Land Division within the Limited Land Division Overlay from the restricted development category in the Productive Rural Landscape Zone, the Rural Zone and the Rural Horticultural Zone. The rationale behind this amendment was that the Overlay provided detailed enough policy so as to not warrant the additional requirements of a restricted pathway. This has not been adopted in the final MTE Amendment.

3.      Public notification

Feedback received by the Commission as part of the MTE Amendment included that minor forms of development were unnecessarily required to undergo public notification. A range of additional development considered minor has therefore been excluded from notification in a number of Zones. This includes “fence”, “pergola”, “deck”, and “carport”.

Importantly, the MTE Amendment has introduced a discretion for a relevant authority to determine that a development’s variation from one or more exclusions prescribed in Column B of the Procedural Notification table in each zone is minor in nature, such that the development is considered to be excluded from public notification. The Procedural Matters table for each Zone will provide that:

“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.”

An amendment introduced post consultation also seeks to provide clarity around the exclusion of State and Local Heritage Places and buildings within the Historic Area Overlay from “demolition” which is exempt from public notification. The term “excluded building” has been added to clarify that buildings which are within the Historic Area Overlay or a State Heritage Area but are not listed as a Local Heritage Place or State Heritage Place and do not hold heritage value nor characteristics consistent with features of heritage importance within the area, do not fall within the exception to the exclusion from public notification.

4.      Building height, building wall setback and wall height

The MTE Amendment recognised an inconsistency in Zones requiring adherence to a building height specified in a Technical and Numeric Variation (TNV) or the height of other buildings in the locality or both. A number of performance outcomes have been amended such that these two criteria are expressed as alternatives, for example:

“Building height is consistent with the form expressed in any relevant Maximum Building Height (Levels) Technical and Numeric Variation layer and the Maximum Building Height (Metres) Technical and Numeric Variation layer or is generally low rise, or complements the height of nearby buildings.”

The definitions of “Building height” and “Wall height” under Part 8 of the Code will also be amended and a definition of “Post height” will be added.

The MTE Amendment also introduces a “measurement point” to the methodology of measuring both building height and wall height. Where there is inconsistency between a “measurement point” specified by the applicable policy of the Code and the point from which the measurement would otherwise be taken (i.e. from the top of its footings for wall height) the “measurement point” prevails.

5.      Definitions – land use and administrative terms

The MTC Amendment will introduce new Land Use Definitions under Part 7 of the Code for:

–       “Adult entertainment premises”

–       “Adult products and services premises”

–       “Function Venue”

–       “Heavy vehicle parking”

New Administrative Terms and Definitions under Part 8 of the Code will include:

–       “Catalyst site”

–       “Direct overlooking”

–       “Excluded Building” (related to public notification where the State Heritage Overlay or the Historic Area Overlay applies)

–       “Excluded land division” (related to referrals under the Affordable Housing Overlay)

–       “Post height”

The full details of all changes made by the MTE Amendment can be found here.

If you have any questions contact us on 08 8212 9777 or at info@bllawyers.com.au or via our contact us page.