Posted on November 16, 2012 by Frances Tse

Development Control Plans alive and well

We previously reported on proposed changes to the provisions of the Environmental Planning & Assessment Act 1979 (Act) regarding development control plans (DCPs). The Environmental Planning and Assessment Amendment Bill 2012 (Bill) which proposed the changes has now passed both houses of parliament, but with significant amendments made in the Legislative Council. The Bill is awaiting assent.

In our previous blog we expressed particular concern with the potential uncertainty created by the drafting of two provisions of the Bill as introduced in Parliament, which were to the effect that:

  • a DCP is of no effect if it prevents or unreasonably restricts development permissible under planning instruments, and
  • the manner in which DCPs had previously been applied could not be taken into account in determining development applications.

Both of those provisions have been deleted from the Bill.

The amendments made to the Bill mean that DCPs will continue to have a significant role to play in planning decisions albeit that they will have the status of guidelines and must be applied flexibly if a development application is non-compliant.

There are reasons why both developers and councils will welcome the changes.

For developers, the Bill will still provide greater scope to argue that developments which do not comply with DCPs should be approved, based on the requirements to apply DCPs flexibly, and requiring consent authorities to allow alternative solutions to achieve the objectives of provisions in the DCP.

For councils, the provisions of the Bill will still allow reliance on DCPs to deal with issues such as heritage conservation and environment protection.