Planning Scheme practice notes and technical guidelines

Technical guideline

The Technical guideline for new developments - general waste and recyclable waste storage and collection 2016 applies to all new developments in the Toowoomba region. The guideline supports a standard approach to interpretation and implementation of the planning scheme. Developments that are required to submit a development application will be assessed against this guideline.

Information sheets

Information sheets are provided to help you better understand the planning scheme and what it means for various aspects of development in the region. The information sheets should be used as a guide only, and do not replace the provisions of the Toowoomba Regional Planning Scheme 2012.

Practice notes for Toowoomba Regional Planning Scheme 2012

While every effort has been made to ensure that the requirements of the Toowoomba Regional Planning Scheme are clear and not subject to multiple interpretations it is inevitable that different readers will interpret some provisions in different ways. 

The role of the practice note is to make clear Council’s interpretation of those provisions to ensure that they are being applied consistently across Council and so that the interpretation is known to others.

Further information

For further information please contact the Duty Planner on 131 872 or visit your nearest Customer Service Centre.

Disclaimer

The information contained in this article is a statement of Council’s interpretation only. This information has been prepared by Toowoomba Regional Council to help people better understand the Toowoomba Regional Planning Scheme and in particular Council’s interpretation of specific provisions. The content of this practice note is not intended to replace the provisions of the Toowoomba Regional Planning Scheme.

The Toowoomba Regional Planning Scheme includes all land within a zone, which may also include a precinct. Some areas are also included in an overlay and/or a local plan.

Each of these has the potential to impact on assessment levels.

level of hierarchy

Part 5.3 of the planning scheme identifies the process for determining a level of assessment. That process establishes the following hierarchy:

  1. Determine the level of assessment identified by the zone/precinct.
  2. Determine whether a local plan changes the level of assessment in the zone/precinct.
  3. Determine whether the overlay changes the level of assessment in the zone/precinct (if no local plan applies) or the local plan.

A level of assessment established by a local plan overrides a level of assessment established by a zone/precinct.

A level of assessment established by an overlay overrides a level of assessment established by a zone/precinct and/or local plan.

A local plan or overlay may ‘raise’ or ‘lower’ the assessment level of the layer below them in the hierarchy, e.g. the zone/precinct assessment level is code assessable, a local plan or overlay might ‘raise’ the assessment level to impact assessable or ‘lower’ it to accepted development.

The purpose of the Neighbourhood Character Overlay (NCO) is to conserve and enhance buildings and streetscapes, which contribute to the character of the local area, and to ensure new development is sympathetic to the nature and character of those predominantly residential areas.

The NCO has a corresponding planning scheme code which contains development controls and assessment benchmarks. It addresses the design, aesthetics and amenity requirements of the buildings and structures (including alterations in some circumstances) that might be proposed. It does not deal with the way the land is used – this is dealt with by the zone.

The NCO also identifies specific properties that are considered to have significant local character importance, and these are identified as Neighbourhood Character Places in Schedule 6 of the planning scheme under Planning Scheme Policy No.7.

Development

The NCO is an assessment benchmark for development that is within the NCO area. Development generally has two main components:

Construction – the buildings and other structures that might be erected.

Additions, extensions and new ancillary structures (including Class 10a’s, e.g. sheds and carports) generally do not materially change the use on site and are considered as ‘building works’. They are assessable against the planning scheme through a concurrence response to Council for Amenity and Aesthetics, i.e. building applications are referred to Council by the assessing building certifier for Council’s consideration.

Use – the purpose for which land is used.

New buildings, including dwelling houses and dual occupancies are assessed as a ‘material change of use’ (MCU) application. They are assessable against the NCO Code and may have other benchmarks applied depending on the level of assessment in the planning scheme. It is important to note that an extension to a dwelling house would generally be considered as building works and not an MCU as the use on site is not materially changed.

Amendment No.11 to the Toowoomba Regional Planning Scheme (which commenced on 27 April 2018, version 19.0) modified the planning scheme so that dwelling houses and dual occupancies are assessed as an MCU rather than building works. This is to ensure that the requirements of the code are considered and achieved prior to the consideration of a building permit.

Determining Level of Assessment

To determine the assessment level for development in the NCO:

For an MCU:

  1. Determine the category of development and assessment under the relevant zone/precinct.
  2. Determine whether the category of development and assessment is changed by the NCO under the NCO part of Table 5.10 Overlay.

For building works:

  1. Determine whether the property is a Neighbourhood Character Place by identifying whether it is listed in Schedule 6 - Planning Scheme Policy No.7. This may have implications on the level of assessment; and
  2. Determine the level of assessment for the building work under the table of assessment for building work, Part 5.7 Table 5.7:1.

Terms & Definitions

Assessment benchmarks are the benchmarks—or measures—that the assessment manager uses when assessing a development application. They help the assessment manager decide whether the proposed development is compliant with the relevant codes. They operate with both code assessable and impact assessable applications.

Dwelling house means a residential use of premises involving—

  1. 1 dwelling for a single household and any domestic outbuildings associated with the dwelling; or
  2. 1 dwelling for a single household, a secondary dwelling and any domestic outbuildings associated with either dwelling.

Dual occupancy

  1. means a residential use of premises for 2 households involving—
    1. 2 dwellings (whether attached or detached) on a single lot or 2 dwellings (whether attached or detached) on separate lots that share a common property; and
    2. any domestic outbuilding associated with the dwellings; but
  2. does not include a residential use of premises that involves a secondary dwelling.

Material change of use— means

  1. the start of a new use of the premises;
  2. the re-establishment on the premises of a use that has been abandoned;
  3. a material increase in the intensity or scale of the use of the premises.

More information on the Neighbourhood Character Overlay can be found in INFO Sheet 055

Understanding a boundary realignment

Part 5.6 Table 5.6:1 (Table of Assessment – Reconfiguring a lot) identifies Reconfiguring a lot as accepted development if “rearranging the boundaries of a lot by registering a plan of subdivision and (i) no additional lots are created; and (ii) the size of all proposed lots is equal to or greater than the relevant minimum lot size for the zone as identified in Table 5.6:2’’.

The important word here is ‘rearranging’ with this type of reconfiguring a lot resulting in the same number of lots at the end of the process as existed at the beginning.

This form of reconfiguring a lot is considered to be a ‘boundary realignment’.

Determining the assessment level for a boundary realignment

The potential for overlap between the accepted development condition and the code assessment condition for reconfiguring a lot has caused some confusion when it comes to boundary realignments that might create a lot that is less than the specified minimum lot size for the zone.

Example:
Two existing lots in the Rural Residential Zone (4,000m² Precinct). Both lots have an area of 5,000m². The proposal is to realign the boundary between the two lots to create one lot of 2,000m² and one lot of 8,000m². The minimum lot size for this zone is 4,000m².

Because of the accepted development condition (ii) which requires the size of all lots to be equal to or greater than the minimum lot size identified in Table 5.6:2, this proposal would be code assessable development.

Related documents

INFO 036 Reconfiguring a Lot

Determining overlay boundaries

When it comes to boundaries there are two types of overlay:

  1. Those that are property based and have boundaries that align with property boundaries.
  2. Those that are based on features that do not align with property boundaries.

Examples of type 1 overlays include the Heritage Overlay and Neighbourhood Character Overlay. Examples of type 2 overlays include the Bushfire Hazard Overlay and Agricultural Land Overlay.

Where development is proposed on land where an overlay applies any development application must address the corresponding overlay code. 

A property may be partially covered by an overlay and the overlay code would only apply if the development was located within that part of the property covered by the overlay.

Where there is disagreement between the applicant and Council on whether the proposed development is inside or outside the overlay the two will work together to resolve the issue.

The applicant must produce a site plan showing the envelope of their development, drawn to an identifiable regular scale.

Council will produce a site plan showing the location of the relevant overlay boundary, drawn to the same scale.

Both plans will be overlaid to show the relationship between the development envelope and the location of the overlay.

The Toowoomba Regional Planning Scheme includes the following definitions of relevance to this matter:

Use definitions:

Dwelling house means a residential use of premises involving—

  1. 1 dwelling for a single household and any domestic outbuildings associated with the dwelling; or
  2. 1 dwelling for a single household, a secondary dwelling and any domestic outbuildings associated with either dwelling.

Dual occupancy

  1. means a residential use of premises for 2 households involving—
    1. 2 dwellings (whether attached or detached) on a single lot or 2 dwellings (whether attached or detached) on separate lots that share a common property; and
    2. any domestic outbuilding associated with the dwellings; but
  2. does not include a residential use of premises that involves a secondary dwelling.

Administrative definitions:

Dwelling means all or part of a building that—

  1. is used, or capable of being used, as a self-contained residence; and
  2. contains—
    1. food preparation facilities; and
    2. a bath or shower; and
    3. a toilet; and
    4. a wash basin; and
    5. facilities for washing clothes.

Secondary dwelling means a dwelling, whether attached or detached, that is used in conjunction with, and subordinate to, a dwelling house on the same lot.

Dwelling house or dual occupancy?

The above definitions blur the line between what is a dwelling house where a secondary dwelling is also included, and what is a dual occupancy.

In many cases the need to distinguish between the two will not be required (for level of assessment purposes) where both uses are accepted development in the planning scheme.

There are some circumstances where it will need to be determined which of the two a specific proposal falls under, e.g. in a particular zone, a dwelling house is accepted development and a dual occupancy is impact assessable.

The distinguishing elements of each definition are:

1. A dwelling house (including the secondary dwelling) must be occupied by the same household. Household is defined by the planning scheme as follows:

Household means 1 or more individuals who—

  1. Live in a dwelling with the intent of living together on a long-term basis; and
  2. Make common provision for food and other essentials for living.

A development proposing two dwellings that are to be occupied by two households will therefore be considered a dual occupancy.

2. A secondary dwelling must be used in conjunction with the primary dwelling. 

For both dwellings to be used in conjunction with one another they must be occupied by one household (as per 1 above). This includes multi-generational living arrangements. 

The dwellings should also be located within close proximity to one another. In an urban environment any two dwellings will be considered to be within close proximity to one another.

Within the Rural zone, Rural residential zone or Emerging community zone both dwellings must be within 30 metres of one another.

3. A secondary dwelling must be subordinate to the existing dwelling. Size is considered to be the distinguishing factor here. The secondary dwelling should be smaller in gross floor area than the primary dwelling.

Summary

Two dwellings on a lot will be considered a Dwelling House where all of the following are met:

  • Both dwellings are occupied by the same household;
  • A secondary dwelling is being added to a lot already containing a dwelling;
  • The secondary dwelling has a smaller gross floor area than the existing dwelling; and
  • Both dwellings are within at least 30 metres of one another (where in the Rural Zone, Rural Residential Zone or Emerging Community Zone).

Two dwellings on a lot will be considered a Dual Occupancy in all other circumstances.

It is important to remember that this information is provided as a guide and are not rigid requirements. Council officers should use their discretion to evaluate each circumstance on its merits.

Clustering of dual occupancy

Temporary Local Planning Instrument (TLPI) 01/2018 – dual occupancy became operational on 21 December 2018. A01.1 (the acceptable outcome) of the TLPI states that: “Not more than 20 percent of the properties within the street block are occupied by a dual occupancy or multiple dwelling development.”

When is compliance with the acceptable outcome to be determined? For a proposed development to meet the acceptable outcome it must be determined that not more than 20 percent of the properties within the street block are occupied by a dual occupancy or multiple dwelling development at the time a building approval is issued.

When is a property deemed to be occupied by a dual occupancy of multiple dwelling?

The acceptable outcome refers to properties that are occupied by a dual occupancy or multiple dwelling. For the purposes of this acceptable outcome a property is considered to be occupied by a dual occupancy from the date on which a building approval has been issued and a multiple dwelling from the date on which a material change of use approval has been issued. Council has prepared a Dual occupancy and multiple dwelling approvals report (see related documents below) to assist members of the development industry and the public in making decisions about the purchase and development of land for dual occupancy. The report contains details of dual occupancy and multiple dwelling approvals that have been issued since January 2008. The report will be updated weekly and made available on the website and via the P&D Alert email.

Figure 1 street blocks

It should be noted that where a development has been approved on a new lot before that lot has been created in Council’s property system the application will be recorded against the parent title. For example, 102-100 Smith St is subdivided into 50 lots with some of those lots now abutting Jones St (a new street). An application is made for a dual occupancy on 2 Jones St however that property has not been created in Council’s system. The application will therefore be registered against 102-100 Smith St. 

What is a street block?

For the purposes of this provision a street block is that section of any street that is between two intersecting streets, as indicated in red in figure 1 to the right.

Figure 2 below provides an example of how street blocks are defined.

Figure 2 defined street blocks

Corner lots

Where a dual occupancy is proposed on a corner lot and:

  1. each dwelling will face a different street; and
  2. each dwelling will have vehicle access from a different street;

that development will not be required to meet the 20 percent limit to be accepted development with requirements (no approval required).

In addition, that development will not be included when calculating the existing percentage of lots occupied by a dual occupancy of multiple dwelling.

Where a dual occupancy is proposed on a corner lot and:

  1. each dwelling will face the same street; or
  2. each dwelling will have vehicle access from the same street;

that development will be required to meet the 20 percent limit to be accepted development with requirements (no approval required). The 20% calculation is to be made based on the number of dual occupancy and multiple dwelling developments in the street to which the development will have vehicle access. Figure 3 below provides examples of how corner lots are treated when calculating the 20% limit.

Figure 3 corner lots

Does the 20% include or exclude the property on which a dual occupancy is proposed?

To meet the acceptable outcome the percentage of properties within the street block occupied by a dual occupancy or multiple dwelling must be 20 per cent or less exclusive of the subject land proposed to be occupied by a dual occupancy. For example a street block has 6 properties. One of those properties is occupied by a dual occupancy. Therefore 17% of the properties in the street block are occupied by a dual occupancy or multiple dwelling (1 divided by 6). An additional dual occupancy within that street block would, therefore, meet the clustering acceptable outcome.

Documenting compliance with the acceptable outcome

Compliance with the acceptable outcome should be fully documented. Such documentation should identify:

  • the date on which the assessment took place;
  • the property subject to the application;
  • the number of properties within the street block;
  • the number of properties within the street block occupied by a dual occupancy or multiple dwelling and the address of those properties;
  • the percentage of properties within the street block occupied by a dual occupancy or multiple dwelling; and
  • whether the number of properties within the street block occupied by a dual occupancy or multiple dwelling is above or below 20%.

The assessment should be accompanied by supporting plans and/or photographs.

Related documents

Temporary Local Planning Instrument 01/2018 (Dual Occupancy)

Development - Temporary Local Planning Instrument (TLPI 01/2018) dual occupancy request to confirm category of development form APP 002 (for print)

Dual occupancy and multiple dwellings approval report

Last Updated: Wednesday, 05 June 2019 10:49
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