Author

Trent Will
Principal

10 Apr 2024

Medium Density Codes officially come into effect today. Here’s our take on the changes.

We previously prepared this overview of the Medium Density Codes when the Minister for Planning announced its return in February. Today, April 10th, the Medium Density Codes are officially in effect. Our in-house experts have prepared this brief review of what is happening, along with an analysis of the potential implications and opportunities.

TBB has been a strong advocate for the Medium Density Codes. Creating good, sustainable design in a suburban context, while avoiding major implications on housing supply, is challenging. We believe the current policy strikes a good balance and we’re looking forward to seeing the outcomes it creates.

How did we get here?

Whilst the Medium Density Codes have been in development for several years, the following is a snapshot of the action since the initial version of the Codes was released.

March 2023: the Government released the Medium Density Codes – applicable to R30 and above – with a deferred implementation of 1 September 2023 (or September 2025 for areas subject to an approved structure plan).

August 2023: the Minister for Planning announced the implementation would be deferred and a review of the R30 – R40 codes would be undertaken.

January 2024: the Minister for Planning announces R30 and R40 single houses will be excluded from the Medium Density Codes and sets out a timeline for the Medium Density Codes to come into effect.

March 2024: the revised version of the Codes were released.

10 April 2024: the new Codes take effect.

R30 – R40 single houses now excluded

As has been well publicised, the most significant change between the final (2024) version and the 2023 version is that single-house development on R30 – R40 coded properties will not be subject to the Medium Density Codes and will instead be subject to the low-density Codes (formally known as Volume 1, Part B). The Medium Density Codes (formally Volume 1, Part C) will apply to grouped and multiple dwellings within R30 – R40 coded properties as well as all dwellings in the R50 and R60 codes.

The graphic below summarises which housing typology will fall under the different codes.

Key changes from current Codes

The Medium Density Codes bring in some substantive changes compared with R-Codes Volume 1. However, there are some provisions similar to the R-Codes Volume 2 (currently used for apartment assessment) so there are not many elements where we are in ‘unchartered territory’.

As per the current approach, the Medium Density Codes are a deemed-to-comply framework, meaning if an applicant meets the deemed-to-comply requirements, the application is considered acceptable and does not require a performance-based assessment. If elements of a design do not meet the deemed-to-comply requirements, only then would they be subject to a performance assessment.

For areas subject to Medium Density Codes, the key areas of change from the current R-Codes (2021) include:

Introduction of a consolidated primary garden area (in lieu of the previous Outdoor Living Area component) which is proportionally sized based on the site area being proposed. This is one of the more substantive modifications to the current codes and will require garden areas ranging from 20m² - 40m². Any lot larger than 220m² includes the requirement for a 40m². As lot sizes decrease, smaller garden areas are permitted. Whilst this primary garden area requirement is larger than the previous outdoor living area requirements, it improves liveability and amenity for residents and the additional area is partly offset by more generous controls in other areas.
Minimum requirements for 15% on-site soft landscaping and tree canopy, with incentives for retention of existing trees.
Solar access requirements, with living spaces to be orientated to receive winter sunlight.
Setbacks to site boundaries have been simplified into four easy categories based on building height and are no longer dependent on the length of side walls and the size of window openings.
Multiple dwelling yields for R40 to R60 densities will now be determined by minimum site area rather than plot ratio.
The maximum site cover controls have been increased by 10% for R40 and for R60, but will no longer allow common driveways to be designated open space (note this change takes effect from April 2026).

For areas subject to low-density R-Codes requirements, there are also some helpful changes:

Ancillary dwellings are permitted on lots less than 350m²;
Site area concessions (up to 35%) for small or accessible dwellings in R30 - R40;
Increased flexibility for LDPs to designate garage locations for corner lots.

Transition Provisions

The new Codes contain a somewhat complicated set of ‘transition provisions’ which defer some elements of the Codes until April 2026. The three main transition arrangements to be aware of are as follows:

For areas already subject to an approved Structure Plan or Local Development Plan (typically greenfields estates), certain provisions are not applicable for another two years, until 10 April 2026. Among other things, the transition provisions exempt these areas from meeting certain landscaping requirements, internal layout requirements and solar access requirements during the transition period.
New site coverage requirements will not apply to any single or grouped dwelling development. Current open space requirements will continue until 10 April 2026.
Existing Local Planning Policies that vary R-Codes requirements will continue to be valid until 10 April 2026. After this date, the new Codes will override such policies (unless the policies are reviewed and updated).

It is important to note that any Local Development Plan, Structure Plan or Precinct Plan which contains development standards will continue to remain valid until the expiry of those plans, with the exception of open space provisions which cease on 10 April 2026.

3 tips for proponents in Medium Density Coded areas

1. Know the difference between single houses and grouped dwellings

With the set-up of the new Codes, it is important to understand whether your development involves grouped or single dwellings where land is coded R30 – R40. Characterising a dwelling incorrectly may result in an assessment against an entirely different set of Codes.

The difference between single and grouped dwellings can be quite subtle. It is not necessarily the case that single houses are those on green title lots. A single house can be on a survey strata lot in some circumstances.

The key differentiator is that any lot with common property must be either a grouped or multiple dwelling – the latter being where dwellings are vertically above or below another.

However, just because there is no common property does not automatically deem the proposal a single house. It is possible that an application containing more than one dwelling on a lot is categorised as a grouped dwelling – even if it is intended that the lot will be subdivided at a later date.
If uncertain, it is wise to seek advice and/or broach the matter with your planning consultant and the local government at an early stage.

2. Consider terrace housing products at early subdivision stages

Many new estates include 6m – 7m wide terrace house lots which are commonly coded R50 or R60. In these codings, the Medium Density Codes will apply regardless of the dwelling type.

Lot orientation will be an important factor here. The Medium Density Codes require primary living spaces (living / kitchen / dining) to have a window facing northwest, north or east. On 6m wide terrace housing lots, most standard house designs have their primary living space connecting to the courtyard – which is typically in the rear of the lot. Therefore, it may be difficult to achieve this requirement if the rear of the lot is oriented to the south or west.
TBB is already taking a considered approach to narrow lot products and their orientation. Where context and landform allows, we will design narrow lots so that their rear boundary is oriented to the north or east. This also assists our clients and their buyers in achieving better NATHERs ratings.

Where lots have already been created, many creative solutions remain. Architecturally designed dwellings will often be capable of integrating a courtyard which meets these requirements. In other circumstances, the transition provisions may exempt you from meeting this requirement (until April 2026). Or alternatively, variations can be sought from the R-Codes via a development application and we trust local governments will exercise common sense in situations where there is a positive overall design outcome.

3. Consider the opportunities

Pleasingly, the new Codes retain the accessible dwelling and small dwelling bonuses, including R30 and R40 coded areas, which are not part of the Medium Density Codes. These bonuses permit a reduction in lot areas by up to 35% where dwellings are either less than 70m² floorspace or are designed to a Gold Standard under the Livable Housing Design Guidelines.

These provisions replace the outdated and rarely-used lot area bonuses under the current R-Codes where occupants of dwellings must be physically dependent or aged over 55 – with covenants on certificates of titles and various other restrictions.

In our experience, the measures to achieve Gold Standard are relatively modest including wider hallways, kitchens, bathrooms and toilets. It does not require dwellings be fitted with lifts and continues to allow two-storey development providing at least one accessible bedroom and living area is provided at ground level. Given this is targeted at affordable housing, dwellings are limited to 110sqm floorspace – excluding garages – though this is capable of variation.

A 35% reduction in lot areas can mean a commensurate increase in yield. For smaller developments, it may turn a 4 lot subdivision into a 6 lot subdivision and looks to be an exciting opportunity to boost housing supply and diversity.

Other opportunities from the Medium Density Codes include:

The ability to include ancillary dwellings on any size lot including strata lots;
Allowance for two-storey boundary walls in R50 and R60 areas – providing more opportunities for townhouse developments;
Greater opportunities for housing on lots less than 100m² (via structure plans).

We believe the current policy strikes a good balance and we’re looking to seeing the outcomes it creates.

Summary

The Medium Density Codes are now in effect. The above provides only a brief overview of a multitude of changes. For those more technically minded, there are also a host of changes to requirements that can and cannot be varied through Local Planning Policies, Local Development Plans and other instruments. These changes could affect design and planning processes (including timeframes) for applications of new residential estates – both positively and negatively. For information on any of these matters or any matters associated with the new Codes, please reach out to our team including:

Jarrod Ross, Principal

Trent Will, Principal

Mark Bancroft, Principal