Following our In Brief on the Environmental Planning and Assessment Bill 2012 (Bill), the NSW Government has passed the Bill subject to the amendments set out below.
The amendments have produced a watered-down version of the Bill, which preserves much of the current weight of Development Control Plans (DCPs). The amendments:
- remove the proposed section 74C(5)(c) of the Environmental Planning and Assessment Act 1979 (EPA Act), which would have made a provision of a DCP of no effect where:
“it has the practical effect of preventing or unreasonably restricting development that is otherwise permissible under any such instrument and that complies with the development standards in any such instrument”.
As a consequence, the current section 74C(5) of the EPA Act is left substantially unchanged;
- remove the proposed section 79C(3A)(a) of the EPA Act, which would have required a consent authority to give less weight and significance to DCP provisions than would be given to environmental planning instruments;
- only require that a consent authority, in relation to DCP provisions, is flexible in applying those provisions and allows “reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”.
The previous wording did not require the objects of DCPs to be achieved.
- remove the proposed section 79C(3A)(e) of the EPA Act, which would have required a consent authority not to have regard to the previous application of DCP provisions;
- include ‘performance criteria’ within the definition of ‘standards’.
As a result of these amendments, DCPs will retain their status as mandatory considerations in the development assessment process, and a consent authority will not be expressly required to give them less weight than the provisions of an environmental planning instrument.
Despite the weakening of the provisions of the Bill, it still provides clarity on the status of DCPs and their relative place in the development assessment process, including the express statement that the provisions of a DCP are not statutory requirements.