On 1 March 2013 a new planning reform came into effect. It is now easier to secure consent for some NSW development proposals when they are inconsistent with development control plans (DCPs). A further, unexpected change has been made in relation to occupation certificates.

Development control plans

The state’s planning law has now been amended to change the legal status of DCPs and create new opportunities for proponents to credibly argue that some DCP provisions should not apply to their developments.

The DCP changes were set out in the Environmental Planning and Assessment Amendment Act 2012 which passed through the NSW Parliament in November last year. We highlighted the main features of this reform in our previous article “More flexibility on development, but not as much as originally proposed” on 20 November 2012.

In very brief terms, under the changes:

  • DCPs are now to provide ‘guidance’ to development proponents and consent authorities and are about ‘facilitating development that is permissible’.
  • DCP provisions 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.
  • Where a proposed development does not comply with the standards of a DCP, a consent authority will be obliged to ‘be flexible in applying those provisions’ and to ‘allow reasonable alternative solutions’ that achieve the objectives of those standards.
  • A consent authority may only consider DCP provisions in connection with the assessment of the pending development application (ie not other development applications that may have been lodged or maybe lodged in the future – this should prevent councils arguing that an approval will set a ‘precedent’).

There was some potential for these reforms to be strengthened via changes to regulations. However, the regulations have now been published, and – in terms of DCPs – they add nothing to the amendments already approved by Parliament.

Generally speaking, most of the reforms outlined above will only apply to development applications that are lodged on or after 1 March 2013.

However, some aspects of the reforms have the potential to influence the application of DCPs to development applications that were lodged before this date.

If you have a development application pending that is inconsistent with a DCP you should review the new section 74BA ‘Purpose and status of development control plans’ (as inserted into the Act on 1 March 2013) and consider giving the consent authority supplementary information on the implications of this provision.

We can assist development applicants who need letters drafted for this purpose.

More generally, we have been advising a number of our clients with regard to the impact of these latest reforms on anticipated development applications. Please feel free to contact us if you think we can assist you.

Occupation certificates

The Environmental Planning and Assessment Regulation 2000 was also changed last Friday.

As a consequence, for development consents issued from 1 March 2013, before issuing an occupation certificate, the principal certifying authority must also check that that the design and construction of:

  • a new building; or
  • any part of a new building that is completed,

are ‘not inconsistent’ with the development consent in force.

This extends the existing obligation of certifying authorities to check that construction certificate plans and specifications (and other associated information) are 'not inconsistent' with the development consent before construction works begin.

The new obligation is now to also check that the works as constructed are not inconsistent with the development consent.

This new requirement is in addition to the existing obligation of certifying authorities to check for compliance with all specific preconditions of a development consent (i.e. conditions that must be satisfied prior to an occupation certificate being issued).

In practice, the principal certifying authority is likely to (primarily) check the works as constructed against construction certificate plans. This is because the construction certificate, and its associated plans and specifications, are actually part of a development consent. Typically the construction certificate plans will be the most recently approved plans.

As a matter of practice, it means that if a completed building has not been built in accordance with a development consent and the relevant construction certificate, it may now sometimes be necessary to seek and obtain a s.96 modification to the development consent, itself, before an occupation certificate is obtained.