Planning update: status of development control plans clarified

Planning & Environment eBulletin - 22 November 2012

Summary

  • New amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act) passed through New South Wales Parliament on 15 November 2012 (the amendments). 
  • The amendments clarify the status of development control plans (DCPs) and how they are to be taken into account during the development assessment process.  

 

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Current position in relation to DCPs

In recent times, there has been an increasing reliance on DCPs in the planning assessment process. While the EP&A Act currently provides that DCPs are not binding on consent authorities, many councils, for example, have developed a practice of including prescriptive requirements in their DCPs and development applications (DAs) which do not comply with those standards are often rejected. 

Additionally, the Land and Environment Court (LEC) has considered the role and weight to be given to DCPs in the development approval process which, in turn, has encouraged the practice of DCPs being given significant weight in the assessment process.

For example, the LEC has found that a DCP: 

 

  • is a detailed planning document which reflects council’s expectation for parts of its area; and
  • will be given significant weight where it has been consistently applied by a council.1 

The Court of Appeal has also found that a DCP is to be treated as a fundamental element in, or a focal point of, the decision making process.2 

 

Overview of the amendments

The amendments to the EP&A Act which passed through New South Wales Parliament on 15 November 2012 clarify the role of DCPs in the planning assessment process. 

For example, the purpose of a DCP is to provide guidance to developers and consent authorities when carrying out development to:

 

  • achieve the objectives of land zones under an environmental planning instrument (EPI); and 
  • facilitate permissible development under an EPI. 

Provisions in a DCP are therefore to provide guidance and are not statutory requirements. 

In addition, the amendments include that:

 

  • A provision in a DCP will have no effect to the extent that it is inconsistent with a provision of an EPI (e.g. an LEP) which also applies to a site/development. 
  • Where a DCP contains standards which apply to a development and a development does not comply with those standards, the DCP must be applied flexibly to allow reasonable alternative solutions that achieve the objective of the standards in the DCP. 

Once commenced (on a day yet to be appointed), the amendments will extend to all DCPs which are currently in force. However, the amendments will only apply to DAs made after the amendments have come into effect. 

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Practical effect of changes

Developers currently have to comply with relevant EPIs, such as the LEP, in addition to having to address and comply with DCPs. This can be a complicated and expensive exercise, particularly where many DCPs apply to a site and contain conflicting requirements (which can often be the case).

The amendments are, therefore, likely to be viewed by developers as a welcome change.

Once the amendments commence, the key benefits for developers will be that:

 

  • A development will be required to comply with the relevant LEP. However, the DCP should only be there to provide guidance and is to be flexibly applied. 
  • A proposal should be compliant with the LEP and be generally consistent with a relevant DCP. 
  • A failure to strictly comply with the standards in a DCP should not, of itself, be a reason for refusing an otherwise compliant development. Instead, the consent authority should consider alternative solutions which generally achieve the objects of the DCP. 

Any developers proposing to lodge a DA in the near future (particularly where the proposal does not strictly meet the requirements of a relevant DCP) might consider waiting until the amendments commence before lodging the DA in order to take advantage of these changes. 

The Green Paper released on 14 July 2012 proposed a new regime of planning instruments including NSW Planning Policies, Regional Growth Plans, Subregional Delivery Plans and Local Land Use Plans. It remains to be seen how the new planning instruments will interact, however, we expect that the new local land use plans will also provide principle planning controls similar to LEPs.

Authors

Natalie Rodwell | Lawyer - Property, Projects & Infrastructure
Breellen Warry | Senior Associate - Property, Projects & Infrastructure

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Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

2  Zhang v Canterbury City Council [2001] NSWCA 167

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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