In brief – DCPs will be less significant and applied flexibly
On 24 October 2012 the NSW Government introduced the Environmental Planning and Assessment Amendment Bill 2012 (NSW), which will result in sweeping reforms across the state to the role of DCPs in the development assessment process. The bill was passed by both houses of parliament on 15 November 2012. The effect on all new development applications in NSW will be significant. DCPs will be given less weight and significance and will be applied flexibly.
What is a Development Control Plan?
DCPs are detailed planning documents that set out a consent authority's expectations for local government areas. Typically the consent authority is a local council. DCPs must presently be taken into consideration in the development assessment process, but they are not an "environmental planning instrument" (EPI). An EPI is a planning instrument that is legally binding under the Environmental Planning and Assessment Act 1979 (NSW), such as a state environmental planning policy or a local environment plan.
However, the courts have traditionally held that where DCPs set out standards that are directly relevant to a development application, they may be given significant weight during the development assessment process.
Less weight and significance to be given to DCPs
There has been a considerable amount of controversy over DCPs for some time, as they can be quite detailed, impracticable and onerous. They are also usually not subject to the direct scrutiny of the NSW Department of Planning when they are made. In some instances they have been known to be at odds with the nature and intention of other EPIs that apply to the same land.
The new role of DCPs
The bill introduces the following amendments.
Facilitating the objectives of existing EPIs
The principal purpose of a DCP will now be to provide guidance on the following matters:
- giving effect to the aims of an EPI that applies to development
- facilitating development that is permissible under any such EPI
- achieving the objectives of land use zones under any such EPI
The bill also states that the provisions of a DCP made for that purpose are not statutory requirements.
Where DCPs have no force or effect
Additionally, DCP provisions will have no force or effect to the extent that they:
- are the same, or substantially the same, as a provision of an EPI applying to the same land; or
- are inconsistent or incompatible with a provision of any such EPI; or
- have the practical effect of preventing or unreasonably restricting development that is otherwise permissible under any such EPI and that complies with the development standards in any such EPI.
Interestingly, the words "preventing" or "unreasonably restricting" have not been defined by parliament in the new bill, so it will be up to the courts to interpret and determine what those words mean.
How consent authorities will be required to apply DCPs
A new section in the bill will provide that if a DCP contains provisions that relate to the development that is the subject of a development application, a consent authority is to give those provisions less weight and significance than is given to EPIs.
If an application complies with DCP provisions relating to an aspect of development, the consent authority cannot require more onerous standards. Where the application does not comply, the consent authority is required to be flexible in applying those provisions and to allow alternative solutions to deal with those aspects of the development.
The consent authority may consider DCP provisions only in connection with the assessment of that development application. It is not to have regard to how those provisions have been applied previously or might be applied in future.
New flexibility is good news for property developers and owners
One of the most important changes is the "flexibility" provision. This mandates that consent authorities are required to have a softer approach and to move away from rigidly applying DCPs, which is excellent news for property owners and developers. It will mean that there will be more options in terms of how, and the extent to which, DCP provisions are applied.
Also, consent authorities can no longer rely upon the application of DCP provisions to previous determinations for similar development applications when undertaking individual merit assessment of any development application.
Should you consider delaying your development application?
If you have a development application on foot, you may want to consider withdrawing your application and re-lodging it at the time the statutory amendments have been made.
That way the consent authority will be required to flexibly apply any DCP provisions in the assessment process, and to allow DCPs to be given less weight during the development assessment process. We anticipate that the legislation will be passed shortly.
DCPs which "prevent" or "unreasonably restrict" development in future
It will remain to be seen, and up to the Court to determine, in what scenarios DCP provisions will have no force or effect, as a result of "preventing" or "unreasonably restricting" development.
Based on previous case law, we expect that the courts will have a practical interpretation of this new terminology.
Please do not hesitate to contact us if you are interested in attending a Sydney seminar about DCPs.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.