Further to our alert issued on 29 October 2012, “Death of the Development Control Plan?”, on 15 November 2012 the Environmental Planning and Assessment Amendment Bill 2012 was passed by both houses of Parliament but with significant amendments which have the effect of protecting the significance of Development Control Plans (“DCPs”) in the development assessment process.

The Bill was assented to on 21 November 2012, and the NSW Government anticipates that the new laws will take effect in early 2013.  

The Bill was assented to on 21 November 2012, and the NSW Government anticipates that the new laws will take effect in early 2013.

Softening the blow to DCPs

The Minister for Planning & Infrastructure (“Minister”) announced that the first draft of the Bill was amended in response to concerns raised by the City of Sydney Council and community and heritage groups.   A number of significant changes have been made to the Bill, which would have otherwise resulted in a significant down-grade to the weight to be given to the DCP.  The following proposals were removed from the Bill:

  1. that less weight and significance be given to DCPs compared to Environmental Planning Instruments (“EPIs”);
  2. that a DCP provision will be of no effect where it would have the practical effect of preventing or unreasonably restricting development otherwise permissible under an EPI; and
  3. that a consent authority is not permitted to place weight on DCP controls where the controls have been consistently applied in the past. 

The Minister’s press release indicates that the Bill now achieves the “balance needed” between encouraging development and the concerns of councils and other groups, especially with respect to protection of heritage areas.  While it is true that the proposed changes had the potential to erode heritage planning controls in certain local government areas and some amendment was needed in that regard, it seems to us that the effect of the changes is to maintain the status quo rather than achieve a balance.

While the changes to the Bill mean that DCPs will continue to play an important role in the assessment process, in keeping with a line of authority developed by the Court, the reforms do reinforce the existing position that DCPs are subordinate to EPIs. 

Given the amendments to the Bill, the key change being implemented is the inclusion of the provisions which require consent authorities to apply standards in a flexible manner, allow reasonable alternative solutions to achieve the objects of those standards, and to ignore the precedent effect of proposed development with respect to a DCP control. 

The amendment to section 74C(5)(b) so that it now stipulates that DCP controls are of no effect in assessing development applications where the controls are “incompatible” with an EPI, in addition to being “inconsistent” with an EPI, will be of little assistance in arguing that certain provisions of a DCP are of no effect as courts have consistently construed the term “inconsistent” by having regard to its ordinary meaning which includes “incompatibility”.