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.

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 one of two options. This is either 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, or an application for building works assessable against the planning scheme (PSW).

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’’. All qualifiers must be met to qualify for accepted development.

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

Determining the assessment level for a boundary realignment

There are two qualifiers for development to meet to be considered accepted development for a boundary realignment. If these cannot be achieved, the level of assessment will change.

Qualifier (i): If additional lots are created as a result of the boundary rearrangement, the development is not considered to be a boundary realignment and is instead a subdivision.

Qualifier (ii): If all the lots resulting from rearranging the boundaries do not meet the minimum lot size requirements for the applicable zone or precinct, the assessment level will be Impact Assessment.

It is important to note that if the lots resulting from rearranging the boundaries are less than the minimum size required by the applicable zone or precinct, the development will require Impact Assessment.

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 qualifier (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 impact 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.