Despite the wholesale reform of the NSW Planning System presently underway, with an intention to issue a White Paper and draft legislation for public consideration in late 2012, the NSW Government is proposing to introduce some important interim reforms.
A new bill has been introduced to amend the Environmental Planning and Assessment Act 1979 (“EPA Act”) with the stated purpose being to remove impediments in the planning system to facilitate the growth of housing development. The most significant change proposed is to down-grade the weight that is to be given to Development Control Plans (“DCPs”) in the development assessment process.
The Environmental Planning and Assessment Bill 2012 passed the Legislative Assembly and was introduced without amendment to the Legislative Council on 24 October 2012. If the proposed changes are enacted they will result in a fundamental shift in the role and importance of DCPs.
Devaluation of the Development Control Plan
Presently the statutory purpose of DCPs is to make more detailed provision regulating development, albeit to achieve the purpose of an Environmental Planning Instrument (“EPI”). Several court decision have emphasised the importance of DCP controls, which, according to the Court of Appeal, should be a focal point of the assessment of an application. DCP controls have often been given determinative weight in the assessment of development applications, particularly where a Council could demonstrate consistency of application.
Under the proposed reforms, the primary purpose of DCPs will be only to provide “guidance” to implementing the aims of EPIs (being Local Environmental Plans or State Environmental Planning Policies) and achieving the objectives of the planning zone.
The reforms reinforce the long held position that a consent authority will be required to give less weight and significance to provisions of a DCP than those of an EPI. However, in direct response to a line of authority in the Land and Environment Court, a consent authority will no longer be permitted to place determinative weight on DCP controls because of their prior consistent application.
Another significant change is that a consent authority will not be able to give effect to a provision in a DCP where it would be inconsistent or incompatible with an EPI, or have the practical effect of preventing or unreasonably restricting development otherwise permissible under an EPI. This allows for considerable scope to argue that DCP controls ought not be allowed to reduce development potential otherwise achievable under an EPI.
In summary, the reforms aim to overcome onerous provisions contained in DCPs which can operate to frustrate development, by reducing the status and significance of DCPs and promoting a more flexible performance-based approach to the development assessment process. The proposed reforms may have an unintended consequence of reducing flexibility with respect to key development standards. While the Minister has indicated that the proposed reforms are not an opportunity for Council to include “unnecessary” controls in their LEPs, given the changes to the status of DCPs, Councils would need to ensure that key planning controls such as height, FSR and minimum subdivision size are in LEPs. As a result, variances from those controls will be more difficult to achieve as they would require dispensation under SEPP 1.
Other amendments aim to facilitate housing development by relaxing provisions to streamline assessment and approvals process, including:
- reforms to bushfire prone land in urban release areas which, for example, enable the regulations to exclude certain residential development in bush fire prone land from the special consultation and development requirements of the NSW Rural Fire Service.
- amendments to the Threatened Species Conservation Act 1995 to further streamline the biodiversity assessment process for Sydney’s growth centres, whereby certified land is exempt from undergoing a site-by-site assessment for threatened species. The Bill does this by expanding the application of biodiversity certification to all EPIs consistently, and to all development assessment processes under the EPA Act (being Part 3A (under the transitional provisions), Part 4, Part 5 and Part 5.1).