UNPACKING TOWN PLANNING CONCESSIONS FOR SDA DEVELOPMENT IN VICTORIA: FROM INCEPTION TO IMPLEMENTATION

What is Clause 52.22: Community Care Accommodation?

Many town planners and property people are not unfamiliar with the term “Community Care Accommodation”, which has existed under Clause 52.22 of the Victorian Planning Provisions (VPP) since 2018. A copy of this clause is included in Appendix A, and it remains as current as 19 July 2024.

The objectives of Clause 52.22 include:

  • To facilitate the establishment of community care accommodation.
  • To support the confidentiality of community care accommodation.

In addition, Clause 52.22 provides a pathway for fast-tracking town planning applications for “Community Care Accommodation”. Initially, it was designed to expedite approvals for government-funded or public authority projects confidentially. However, it wasn’t widely utilised until the Victorian Government amended Clause 52.22 on 4 November 2022, under Planning Scheme Amendment VC226. This exempts community care accommodation projects funded by, or carried out by, a registered National Disability Insurance Scheme (NDIS) provider. The key changes include, among other things:

Before (effectively before 4 November 2022):

“The use [/development] is funded by, or conducted by or on behalf of, a government department or public authority, including a public authority established for a public purpose under a Commonwealth Act.”

Current (effectively on and after 4 November 2022):

“The use [/development] is:

  • funded by, or carried out by or on behalf of, a government department or public authority, including a public authority established for a public purpose under a Commonwealth Act; or
  • funded by, or carried out by, a registered National Disability Insurance Scheme (NDIS) provider if the design of the building is certified to the NDIS Specialist Disability Accommodation Design Standard by an accredited third-party NDIS Specialist Disability Accommodation assessor.” (Emphased by author of this article.)

In addition, the exemption from notice and third-party VCAT review has also been expanded to allow registered NDIS provider-funded or authorised projects to be fast-tracked.

The VC226 Amendment aligns with broader state policies such as Homes for Victorians and Plan Melbourne Direction 2.3, which emphasise the importance of expanding social and affordable housing options. By clarifying exemptions, the amendment aims to streamline decision-making processes, reduce project timelines, and ensure planning certainty for community care accommodation proposals (both privately and government led). This change could potentially reduce the approval period for qualified private SDA developments from six or longer months to up to 4 weeks.

The VC226 is well intentioned and welcomed by NDIS providers and SDA community. This amended Clause 52.22 has been used and applied at different Victorian councils since its inception in 2022. Below are my observations from using this clause to facilitate various types of community care accommodation.

Opportunities for Enhancement

SDA Design Certification Criteria

As shown above, the qualification criteria for the town planning dispensations for NDIS provider-funded or authorised projects is that the design of the building is certified to the NDIS Specialist Disability Accommodation Design Standard by an accredited third-party NDIS Specialist Disability Accommodation assessor. In other words, the SDA assessor will need to certify the town planning drawings and provide their design certification to Council to accompany the town planning dispensation request, under Clause 52.22. However, certifying town planning drawings is not workable in accordance with the NDIS Specialist Disability Accommodation Design Standard, October 2019, (the National SDA Design Standard), which states that (p.8):

“When can the dwelling be certified?

A dwelling can be certified to a particular Design Category at two stages:

  1. Provisional – Design Certification of SDA dwelling

The dwelling design can be certified as compliant with the design requirements of a particular design category when the design has been submitted for building approval to a regulatory authority such as a council or a certifier.

The certification is called ‘Provisional’ as the dwelling has not been built at this stage. Only a built dwelling can get a Final certification suitable for NDIS enrolment.

  • Final-as-built Certification of SDA dwelling (Mandatory for SDA enrolment)

The dwelling shall be certified as a particular Design Category when the dwelling is built with the relevant features as listed in the Design requirements section of this SDA Design Standard document.

The advantage of the 2-step certification is to give assurance to Builders and Developers that if the dwelling is constructed based on the certified design then the dwelling will be approved for use as a compliant SDA dwelling by the NDIS.”

When incorporating the certification timeframes into the property development process chart, Figure 1 below is formed. The criteria for SDA certification at the town planning stage cannot be implemented – a classic case of putting the cart before the horse. Bruce Bromley, a registered SDA assessor, co-author of the National SDA Design Standard, and registered SDA provider, has strongly advocated for this issue. He states, “It is not possible to certify Specialist Disability Accommodation designs at the town planning stage… … Unless building approval documents are prepared and certified by an accredited third-party NDIS Specialist Disability Accommodation assessor at the town planning stage, this requirement cannot be met, and the planning concession cannot be applied. We expect this to be amended.”

SDA Development Process Chart Overview

Source: PPC Urban 2024.

Councils’ Policy Interpretation Inconsistency

Despite being well intentioned, the VC226 amendment has sparked debates, particularly concerning the inconsistency between NDIS certification and town planning timeline. As outlined above, the concession criteria for SDA certification at the town planning stage is not implementable. Keeping the intention of this Clause 52.22, some SDA assessors, are prepared to assess town planning drawings and confirm in writing (hereafter referred as the Pre-certifications) whether:

  • The proposal meets the intent of the NDIA’s requirements for SDA; and
  • The proposal is spatially capable of being certified to the National SDA Design Standard.  

This timing discrepancy in SDA certification has led to different interpretations among Victorian councils when evaluating your development qualifications for planning dispensations. This resulted in significant inconsistencies in approvals for SDA developments across the state. Some councils may accept pre-certifications as sufficient to show the SDA Provider’s commitment and capability to comply. However, others refuse to grant any planning dispensations, including the notice and review exemption, and instead require SDA providers to undertake a complete planning application process.

2.3. Non-SDA Community Care Accommodation Excluded

Clause 52.22 is well-intentioned and widely welcomed by NDIS providers and the community. However, the exemption criteria are considered insufficient to fully achieve the objectives of Clause 52.22: Community Care Accommodation.

Although Community Care Accommodation is broadly defined under the VPP, the amended exemption pathway applies exclusively to SDA, which focuses on permanent housing solutions. Non-SDA Community Care Accommodation is excluded.

Clause 52.22 allows qualified Community Care Accommodation for town planning dispensations. The Victorian Planning Provisions (VPP) defines “Community Care Accommodation” as follows:

Land used to provide accommodation and care services. It includes permanent, temporary and emergency accommodation. It may include supervisory staff and support services for residents and visitors.

My interpretation of the above definition is “supported accommodation”.

Under NDIS, supported accommodation[1] is defined as:

“Under the NDIS, supported accommodation is separated into two different parts: Specialised housing such as shared supported accommodation or community residential units, known as Specialist Disability Accommodation (SDA) and Supported services, knows as Supported Independent Living (SIL).

This means that supported accommodation includes two types of housing – SDA and SIL housing. Under NDIS, SDA typically refers to permanent homes with specialised design features, while SIL housing often pertains to short to medium-term accommodation, which may or may not include specialised design elements, such as respite or Supported Residential Services facilities. Developers of SIL housing are not exempt from Clause 52.22 and must undergo the complete planning application process, which generally extends project delivery timelines by about 12 months. This has raised concerns about fairness in the development sector due to the limited scope of the exemption pathway, despite the high demand for essential disability accommodation and the objectives of Clause 52.22 to facilitate Community Care Accommodation (including SIL housing).

Other Aspects of Clause 52.22

Planning Triggers under Overlays

The planning dispensations for use and development of SDA homes are only applicable to SDA proposals within certain commercial zones and most of residential zones. Should your development trigger town planning approval under affected overlays, developers are still required to apply for planning permits for SDA proposals under any relevant overlays should a planning permit trigger exist within the overlays. Planning permit applications for SDA proposals triggered under an overlay for planning approval and allowed under the zoning may be qualified for fast tracking process without community notice and third-party appeal right.

Merits of Obtaining Planning Approval

Councils’ planning departments will review individual proposals and may offer flexibility in development siting (e.g., crossovers, landscaping, private open space, setbacks, walls on the boundary), potentially maximising development yield. However, for building permit applications, private building surveyors do not possess the same level of authority as public planners and cannot grant the same degree of flexibility under the building regulations.

Councils may override community objections and approve developments if developments are deemed acceptable. In contrast, private building surveyors do not have the same level of authority to make such decisions. This could potentially delay the building approval process for an unexpected (and long) period of time.

In areas of Aboriginal cultural heritage sensitivity, a Cultural Heritage Management Plan (CHMP) may be exempt under the town planning process, provided exemption conditions are met. However, no such exemption is available during the building permit process. This means developers must complete a CHMP before private building surveyors can issue a building permit, even for the construction of two SDA homes. Conducting a CHMP can be a costly and time-consuming process, typically costing between $30,000 and $50,000 and taking 2-3 years to complete.      

Comparing Assessment Considerations: Town Planning vs. Building Permit Applications

Source: PPC Urban 2024.

Fast Tracking Single SDA Home on One Lot

Clause 52.22 is effective for single SDA homes on an allotment where the land is not affected by an overlay that would trigger a planning permit for development, and the zone falls under one of the specified zoning provisions listed in Clause 52.22 for use and development exemptions. In these situations, developers can typically proceed directly with building permit applications, bypassing town planning applications. The process for this type of SDA developments is similar to the building permit application for a single house on an allotment. SDA assessors do not need to issue pre-certification, and straight to Provisional Certification instead. SDA assessors do not need to issue pre-certification; they can proceed directly to Provisional Certification – see Figure 1 previously.

Conclusions

The changes to Clause 52.22: Community Care Accommodation has been warmly welcomed by NDIS providers and SDA community, for fast tracking specialised design homes for people in need.

With good intentions, we believe that this planning policy should be revised to clarify the acceptance of pre-certification. This revision would enhance policy interpretation and implementation across Victorian councils. Additionally, we request that the Victorian Government and councils consider expanding this policy to cover other non-SDA community care accommodation to fully achieve its policy objectives.

From developers’ perspectives, running a fast-tracked town planning process could be a more cost-effective and process-certain option. Town planning dispensations may not work for everyone.


[1] https://www.housing.vic.gov.au/supported-accommodation