I say potentially major shake-up since we are still somewhat in the dark about how this is to be rolled out. The new page by the GAA gives us slightly more to go on than the Minister did last week:
The Code eliminates the need for a planning permit for houses on lots less than 300m2 where minimum standards are met. For an outline of the standards see the link to the Small Lot Housing Code.
The Code has been designed to apply to any area where a new Precinct Structure Plan is created in an Urban Growth Zone.
The GAA will work with Councils, developers and stakeholders in the structure planning process to implement the Code.
However, we don’t have the revised planning scheme controls, so we don’t know the exact statutory mechanism used to give effect to this. The last line implies it may not apply automatically anywhere, but will be taken on board as required by growth area councils. Yet in the absence of specifics about the link to planning schemes I can’t help suspect that there is a test-the-waters element to all this. Nothing released explicitly says it will only apply in the Urban Growth Zone (just that it was designed for this purpose) and the original press release implies a wider roll-out by saying it will improve housing affordability, “especially in Growth Areas” (my emphasis). A wider implementation, probably following a pilot program in the Growth Areas, would fit with some of the chatter we’ve heard about increased use of Code Assess-like mechanisms (such as this article).
The idea of a small lot housing code is potentially very attractive: properly done it could be a great way to spur denser development. After all, I have written before with enthusiasm about a dense greenfield town built on a highly code-based model. But I have grave misgivings about the Code itself. It’s an odd document, a single double-sided A4 sheet with simple formatting that is quite conspicuously not out of the usual DPCD bureaucracy. Indeed, the general impression is of some draft internal working document, rather than a considered final draft. It would be fascinating to know what kind of process this went through before release. Consultation? Workshopping? Desktop assessments? A pilot program? Peer review?
What follows is going to sound pretty harsh, as I have quite a few complaints with the Code. I don’t like to be so critical. However, I think this is an unusual case in that the document’s problems are so numerous and severe that the fine details of drafting need to be discussed. Something has gone wrong with the quality assurance process on this one, and that is the most notable point to be made about the Code. The idea is laudable, but it is in the detail that the problems arise.
The other point to remember if what follows seems excessively pedantic is to remember how this document is to be used. We have been told compliance with the Code will mean no permit is required, which gives the document a very clear statutory role. It isn’t going to be used primarily as a design guideline for assessments, with room for professionals to exercise their discretion in its interpretation: it sets the line between “permit required” and “permit not required.” A document used for that purpose needs, even more than most, to be absolutely unambiguous. It functions essentially as an extension of legislation, since it defines the difference between lawul and unlawful construction, and needs to be drafted with the same level of clarity.
Yet what leapt out at me about the Code is the inconsistency and vagueness of the language for a document that is supposed to function in this way. A few examples:
- The document specifies that the maximum height of a building should be “10 metres or 11 metres on sloping land.” But what level of incline counts as “sloping land?” The code doesn’t tell us.
- Side setbacks are specified, but the document notes that they are “approximate.” In a document that acts as a permit trigger they can’t be: it has to be black and white.
- We are told that “each house must have a living room that is orientated for solar access,” but not told what exactly that means. Does it have to face north? Or does any living room with a window count?
- Windows above the first storey – itself an ambiguous term, but apparently used here to mean the storey at ground level – are to be screened, but unlike in ResCode, there is no definition of what that screening is to be. We can asssume the intent is to use the same standards of screening as apply under those planning scheme clauses, which allow a specified percentage of visual permeability, but the document doesn’t actually establish that.
- There is a car parking standard that sort of reproduces ResCode’s rates, but then specifies that the 3 bedroom standard is reduced “close to town centres.” Again, that is too imprecise for a document that will act as a planning permit trigger.
- Everyone will understand that the ground level and rooftop private open space requirements are alternatives (as opposed to both being needed) but the document should actually say that. Currently it doesn’t.
Other details aren’t internally consistent:
- The section on side setbacks tries to replicate ResCodes “on the boundary or 1 metre off it” dichotomy, but breaks the wording by specifying that side setbacks have to be at least 1 metre. This contradicts the next standard, which specifies a height for walls on boundaries. The drafters should look again at how ResCode deals with the same situation.
- The garage standard specifies that “if the front width of the lot is less than 6.0 metres the lot must be ‘rear loaded,’” which is an odd turn of phrase but at least relatively clear. But this raises another inconsistency, since the standard above this specifies that garages and crossovers can’t exceed 40% of the front width. If we assume a standard 3 metre crossover, that would mean a garage wouldn’t ever be compliant on a frontage of less than 7.5 metres anyway. (I’m still pondering the implications of specifying that a 2 or 3 storey house must have a lower proportion of crossovers than single storey houses: perhaps there’s a reason, but the intent of that doesn’t leap out at me).
- In connection with roof top balcony areas, one option is a space of 6 square metres with minimum dimension 3 metres. Wait a moment: if it’s a 6 square metre space, and the shortest side is 3 metres, how long is the other side? Any space with minimum dimension of 3 metres has to be at least 9 square metres in size.
And then there are things that are just weird, or don’t seem well thought through:
- Was it really the intent to trigger a planning permit if a lot had more than 10% of permeable surface? Why would that be? This would mean, for example, that you would need a planning permit if you had an unpaved garden that occupied more than 10% of the site – so at an absolute maximum 30 square metres in area. (As an aside, the permeability standard is one of several where a range is specified where only a minimum or maximum should be. If the site is to be between 90% and 100% impervious, then what you are really saying is that a permit is required for less than 90% impervious surfaces. If a side street setback is to be “no setback to 1.5 metres,” you are saying a permit is required for a setback of more than 1.5 metres. This probably seems like an odd point to make, but decisions like requiring a permit trigger for having too little impervious surface seem like they could only have derived from confusion by the drafters as to what they were actually specifying.)
- On the side street setback, why would you need to set a maximum? (ResCode only sets minimums.) I understand there can be design reasons for keeping buildings close to the street, but are excessive side street setbacks really going to be a major problem on such small lots? And is the control sophisticated enough to prevent excessive side setbacks anyway? Presumably only one part of the structure has to be less than 1.5 metres from the side street. Or would a permit be triggered by any part of the building that had a side street setback of more than 1.5 metres? The control isn’t really clear.
- I see what the front and side facade articulation standards are going for, but the measures to try to achieve such articulation seem so crude that it would have been better not to bother. At some point, if you aren’t going to have a subjective architectural assessment as part of the planning process, you are better off just working on the assumption that it is in the designers’ interest to articulate their facade and design an okay-looking building. If someone really wants to build an unrelieved box, blunt rules like these won’t make their buildings better.
- The car parking standard specifies a rate for a “suburban” situation, which seems intended to have been paired with an alternate rate (urban? town centre?) that has been taken out of the document. So the word “suburban” just sits there with no purpose. Perhaps it’s there for flavour.
When a provision like this goes out into everyday use, it will be buffeted and twisted by those who seek to further their own interests. It can take years to shake all the potential loopholes out of such a document: ResCode, a very well drafted provision, still has a few oddities after a decade of use. Many of those took years to become apparent, and what that means is that it is vital that the initial drafting is solid. There simply should not be so many instantly apparent mistakes and ambiguities in a document of this type. When there is a lack of clarity arguments arise, which means potentially costly legal disputes and more angst for planners, developers, and the community.
It will be interesting to see where this goes from here. This isn’t a document that is ready to implement in the way that the Minister claims he will. Will it be quietly withdrawn and / or revised? Will we be told it’s just a model from which councils can draw as they prepare their structure plans? Will the planning scheme controls eventually place it in a different context, one that makes it less of a statutory document than we have been told thus far? Whatever the choice, it was premature for the Minister to claim the Code was ready to go.
Image by Tim Holmes, used under Creative Commons Licence: click it for details.