Australia: Less complexity, more flexibility for NSW development: Development Control Plans' role to be reduced
03 November 2012
The Environmental Planning and Assessment Amendment Bill 2012 sets the tone for further changes to the NSW planning system, following on from the Government's Green Paper on a New Planning System for NSW issued earlier this year.
How DCPs are currently applied
In NSW, the main planning control documents are State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs). The purpose of these policies and plans are to set out planning aims and objectives, to zone for particular land uses, and set out development standards (for example, setbacks, building height and floor space ratio).
While DCPs do have statutory recognition, they are not legislative instruments like SEPPs and LEP, but are instead prepared by local councils to control development in their local government area. DCPs exist essentially as an overlay to SEPPs and LEPs. Over time, however, two things have occurred to lend greater weight to the importance of DCPs than what was perhaps originally intended:
- many DCPs have evolved to be dense and complex documents which control almost every conceivable aspect of development in a rigid fashion; and
- while a DCP is only one of many factors for consideration in the council's decision-making process on development applications, court decisions have held that DCPs should be a "fundamental element" and a "focal point" in decision-making, and DCPs which are applied consistently will be given more weight, meaning that they are often applied very prescriptively.
The Bill seeks to reduce the role of DCPs in three key ways.
First, it changes the focus of DCPs from making "more detailed provision with respect to development" to merely providing "guidance" on certain matters, including giving effect to the aims of SEPPs and LEPs, "facilitating permissible development", and achieving zoning objectives. (This does not apply to DCPs which provide for complying development.)
Secondly, during a council's DA decision-making process, it will, among other things, be required to:
- give less weight and significance to DCP provisions than to provisions in SEPPs and LEPs;
- be flexible in applying DCP provisions and allow alternative solutions;
- not have regard to how the DCP provisions have been applied previously, or might be applied in the future (ie. there should be no "precedent effect"); and
- not impose more onerous standards with respect to an aspect of a development, if DCP provisions set a standard with respect to that aspect of the development and the development complies with that standard.
The changes in the second category outlined above will apply only to development applications lodged after the new law commences operation. The other changes outlined above will however apply to all DCPs, and all development applications, whether existing or new.
How does this affect my development?
If you are considering lodging a development application in the near future for development that is contrary to an existing DCP, or where a DCP operates to limit development potential, there may be some utility in holding off in doing so until the Bill passes through the Upper House.
You might also want to re-consider development proposals which were shelved because of difficult provisions of any DCPs which applied to the proposals.
At this stage, the Bill is in the NSW Parliament's Upper House, the Legislative Council, and we expect it could be passed very soon. It appears that the Bill is a Government priority, given its swift passage through the Lower House. Even if the Bill is passed quickly, however, there is no set time-frame for commencement of the new law yet.
We may also begin to see more challenges to DCPs on the basis that their terms prevent or unreasonably restrict otherwise permissible development. The Bill does not specify what constitutes an "unreasonable restriction", but the purpose and objects of the Bill and other planning decisions will offer some useful guidance.
You might also be interested in...
- NSW Government unveils proposed new planning system for NSW
- Part 3A repeal and NSW's new State significant approval laws come into effect 1 October
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.