Developers and local councils will have greater flexibility in the assessment of development applications under amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act), recently passed by the NSW Parliament, as a result of amendments directed at the role and application of development control plans. This legal update examines the amendments and their likely impact.
The amendments to the EP&A Act are contained in Environmental Planning and Assessment Amendment Act 2012 No 93 passed by the NSW Parliament on 21 November 2012 (Amending Act).
The changes will commence on proclamation, expected to occur in early 2013.
Changes to development control plans
A development control plan is a document, prepared by a council, which contains the detailed development controls for a particular area.
The amendments deal with the role of development control plans in the assessment and consideration of development applications by consent authorities (such as councils).
The most significant changes to the way development control plans are applied include the following:
Specifying that the principal purpose of a development control plan is to provide guidance to persons proposing to carry out development on certain matters, including:
- giving effect to the aims of any environmental planning instrument (such as a local environmental plan or a State Environmental Planning Policy) (EPI) that applies;
- facilitating development that is permissible under any such instrument; and
- achieving the objectives of land zones.
Specifying that a provision of a development control plan, whenever made, is of no effect, to the extent that it is:
- the same or substantially the same as the provision of an EPI applying to the same land; or
- inconsistent or incompatible with a provision of any such EPI.
Further, the Amending Act amends the provisions of the EP&A Act which set out the manner in which a development control plan must be taken into account in the assessment of a development application. Now:
- if the proposed development does comply with the development controls contained within the development control plan, the consent authority must not require more onerous standards with respect to the development than those contained in the development control plan; and
- if the proposed development does not comply with the development controls contained within the development control plan, the consent authority must be flexible in applying those development controls and allow reasonable alternative solutions to deal with those aspects of the development that achieve the objective of those controls.
When development control plans were introduced to the planning framework, they were intended to be flexible guidelines which complemented controls contained in an environmental planning instrument. Furthermore, when assessing development applications, the environmental planning instruments were to be the primary guiding instrument.
However, through the evolution of case law such as Zhang v Canterbury City Council (2011) 115 LGERA 373 and Stockland Development Pty Ltd v Manly Council  NSWLEC 472, the status of development control plans was elevated so that consent authorities were obliged to give the development control plan “proper, genuine and realistic consideration”.
Increasingly, this led to consent authorities consistently and rigidly applying development control plans in the assessment and determination of development applications. This was particularly problematic when development control plans (which may have existed prior to a local environmental plan), contained controls that conflicted with provisions of the local environmental plan.
It is worth noting that these reforms were themselves amended significantly – and in the view of some commentators, watered down - during the debate in NSW Parliament. In particular, some provisions which were contained in the consultation draft of the amending legislation do not appear in the final form of the Amending Act, including provisions that specified that:
- a development control plan had no effect to the extent that it had the practical effect of preventing or unreasonably restricting development that would otherwise be permissible;
- a consent authority was to give the provisions of a development control plan less weight and significance than those of an EPI; and
- a consent authority could not have regard to how the provisions of the DCP had been applied previously or might be applied in future.
Reform of the NSW Planning System
Broader reaching reforms are afoot. As readers may be aware, the EP&A Act is proposed to be repealed in 2013 and replaced with new planning legislation. We are closely following these “once in a generation reforms”, and links to two of our recent legal updates reporting on the legislative reform process are here:
NSW Planning System Green paper - July 2012