Changes to applying development control plans
The NSW State Government has been making a number of incremental changes to NSW's planning laws over the last year before it introduces draft new legislation through its White Paper due in December 2012. As part of this reform process, the Environmental Planning and Assessment Amendment Bill 2012 has passed both houses of Parliament and the subsequent Environmental Planning and Assessment Amendment Act 2012 No 93 (Amendment Act) received assent on 21 November 2012. The Amendment Act makes changes to the status and application of development control plans (DCPs). The provisions of the Amendment Act dealing with DCPs have not yet been proclaimed but the changes are likely to come into effect in early 2013. It is likely these changes will reflect the new system to be introduced through the White Paper, and for this reason the working of these changes will provide an early indicator of how the new system will work.
The new laws affect how to interpret DCPs when assessing development applications. To avoid the risk of legal challenge to development decisions, councils need to be aware of the new requirements. Key amongst these are the requirements to interpret DCPs flexibly and to allow 'reasonable alternative solutions' to achieve the objects of DCP standards.
The new status of DCPs
The new section 74BA provides that the 'principal purpose' of DCPs is to 'provide guidance' on:
- giving effect to the aims of any applicable environmental planning instrument
- facilitating permissible development
- achieving the objectives of the relevant land zones.
The key amendment is the insertion of section 79C(3A) which:
- prevents the consent authority requiring more onerous standards than a DCP provides
- requires the consent authority to be 'flexible' and allow 'reasonable alternative solutions' in applying DCP provisions with which a development application does not comply
- limits the consent authority's consideration of the DCP to the development application (preventing consideration of previous or future applications of the DCP).
The replacement of section 74C(1)(a) shifts the focus of DCPs from stipulating 'more detailed provision with respect to development' to a more permissive, flexible and facilitative document intended to enable development rather than stifle it. The section now refers back to the purposes in the new section 74BA (mentioned above).
The amendments to section 74C(5) mean a DCP provision now has no effect to the extent that it is 'inconsistent or incompatible with' an Environmental Planning Instrument applying to the same land. The word 'incompatible' has been added to bolster the perceived difficulty in dealing with DCPs that conflict with environmental planning instruments. Also, the phrase 'or its application prevents compliance with a provision of any such instrument' in the previous section 74C(5) has been deleted.
Background to the changes
In introducing the Bill, the Minister for Planning and Infrastructure stated that the reform "will remove more unnecessary impediments and serve to assist in boosting housing supply." These changes will, however, have consequences beyond just housing supply, given that the reach of a DCP extends beyond new housing developments. Nevertheless, the Amendment Act is clearly a response to the Government's perception that DCPs have become too complex and prescriptive, and that the previous drafting of the Environmental Planning & Assessment Act 1979 meant that councils and the Courts gave DCPs too much weight and applied them too strictly.
These changes will render obsolete some of the jurisprudence that has developed, particularly over the last 15 years, on the interpretation and application of DCPs. Time will tell whether there will be any new jurisprudence dealing with the changes before the new planning regime is gazetted. If there is any, it is likely litigation will relate to section 79C(3A) and in particular the meaning of 'flexible' and 'reasonable alternative solutions' in applying DCPs.
In preparation of these changes becoming law, councils should review their current approach to DCPs and in particular how they apply DCPs in assessing development to ensure consistency with the new statutory purposes. Any future DCPs prepared by councils will also need to factor in the changes referred to in this article.
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