The Environmental Planning and Assessment Bill 2012 passed through both houses of Parliament on the 15 November 2012.
The bill makes a number of changes. For example, there is a new power to allow councils to make property owners and developers pay for the costs of their investigation when a council issues an order under the Environmental Planning and Assessment Act 1979. There are also changes that impact on the regulation of accredited certifiers and building certification. We will discuss these amendments in another article.
The main reform of the bill is the change the key purpose of development control plans (DCPs). This is the focus of this article.
PURPOSE OF DCP'S
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 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.
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.
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.
As a result of the amendments 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.
More onerous standards not allowed
Provisions in a DCP are therefore to provide guidance and are not statutory requirements.
Where a development proposal complies with the standards of a DCP, a consent authority will not be allowed to require more onerous standards.
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.
Flexibility as to the DCP standards, but not the objectives.
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.
This mean that flexibility may be required in relation to a standard in a DCP, but not the objective of that standard. As a result, the new flexibility requirement may be irrelevant if complying with the standard is the only way to achieve the relevant objective.
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. This reform has been amended since the bill was first introduced into parliament and is now more limited in application.
Only current development application will be considered
A consent authority may only consider DCP provisions in connection with the current application. They cannot consider the consequences on hypothetical future applications. The notion that to approve the current application 'will set a precedent' will no longer be permitted.
The government has indicated that changes will be made to the regulations that will commence at the same time as the reforms outlined above. There have been not details of the regulation changes released at this stage.
The government says that the changes will commence in early 2013 and will only apply to applications lodged after the new laws come into effect, with exception to the change in the 'purpose' of a DCP.
What do the changes mean?
Applicants 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 most applicants 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 applicant 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.
If you would like to discuss the implications of these changes on your current or potential projects feel free to contact us.