Posted on October 30, 2012 by

The death of Development Control Plans?

We have reported on the introduction of the Environmental Planning & Assessment Amendment Bill 2012 (Bill) in an earlier blog.  In this article I will address the significant changes to the provisions of the Environmental Planning & Assessment Act 1979 (Act)  regarding development control plans (DCPs), proposed by the Bill. 

Read for the first time on Tuesday 24 October, 2012, the Bill’s Second Reading Speech was made that afternoon and debate was concluded in the Legislative Assembly the same day.  That evening it was with the Legislative Council where it was read for the first time, and debate is imminent.  Assuming no dispute in the Council, it is likely to be law by the end of the year.

In the Second Reading Speech the Minister for Planning and Infrastructure argued that DCPs “have gone from guiding development, to be given the same weight, and sometimes seemingly more weight, than the relevant local environmental plans“(emphasis added)(Second Reading Speech, Hansard 24 October, 2012, Legislative Assembly, page 52).

Judges in the Court of Appeal and the Land & Environment Court may be surprised to learn that DCPs have been given the same weight as, or greater weight than LEPs.  Detailed consideration of DCPs and the weight to be given to them has been undertaken in several cases since Zhang v Canterbury City Council [2001] NSWCA 167. As is clear from the Act itself, and the decided cases, a DCP does not have the same status or weight as an LEP, and non compliance with a provision of a DCP does not of itself prevent the grant of consent.

According to the Minister, DCPs “have grown and become ever more complex and prescriptive.  This makes it harder for projects to comply with the controls” (ibid.)

The answer?  A bill which requires Councils to apply DCPs more “flexibly” and allows “alternative solutions” to address DCP requirements.

In order to achieve this, the Bill proposes a number of changes to the Act.

First, the Bill proposes to amend section 74C(1)(a) of the Act.  No longer will councils draft DCPs “to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned.” The new clause 74C(1)(a) is to the effect that DCPs will “provide the guidance referred to in section 74BA”.

Clause 74BA of the Bill states that a DCP is to provide guidance on:

• giving effect to the aims of an environmental planning instrument (EPI);
• facilitating development that is permissible under an EPI; and
• achieving the objectives of land zones under an EPI.

The clause suggests that “guidance” does not constitute a requirement.

Also of interest is the use of the phrase ‘facilitating development‘ which is quite different to making  ‘more detailed provision‘ with respect to development, which can include matters by way of restriction falling short of inconsistency.

In that regard, section 74C(5) of the Act currently has the effect that a DCP is if no effect if it is inconsistent with a provision of an EPI. Section 74C(5) is proposed to be expanded as follows (the amendments are in bold):

A provision of a development control plan…has no effect to the extent that:

(a) it is the same of substantially the same as the provision of an environmetal planning instrument applying to the land;

(b) it is inconsistent or incompatible with a provision of any such instrument or its application prevents compliance with a provision of any such instrument; or

(c) 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.“

The amendments introduce a degree of uncertainty regarding when a DCP is incompatible with an EPI, and when it unreasonably restricts development. An example, of the latter might be a landscaped area control which effectively prevents the achievement of a permissible floor space ratio/height limit.

The Courts may well be required to hear arguments about whether it is reasonable or not for a DCP to restrict a particular development.

Also, can a DCP be considered to prevent or restrict development, when its provisions are only a ‘guide’? It is the manner in which the DCP is applied which may prevent or restrict development.

It would seem, however, that the intention is that to the extent that a DCP contains controls over and above those in an environmental planning instrument, those controls may have very limited, or even no effect.

Finally, a new clause 79C(3A) will provide that DCPs are to be given less weight than EPIs. It also goes on to state that in determining development applications,  consent authorities must not impose standards more onerous than those contained in their DCPs, if a development complies with those standards. If a development does not comply with those standards, the consent authority must apply the standards flexibly and allow “alternate solutions” to deal with the issue the standard in the DCP addresses.

How does one provide an “alternate solution” to a DCP provision which is performance based, such as a requirement to allow a neighbour’s property to receive three hours of direct sunlight between 9am and 3pm on the winter solstice?

The proposed clause 79C(3A)(e) states that a consent authority in applying the DCP ‘is not to have regard to how those provisions have been applied previously or might be applied in future’. The provision is curious but may be a response to the decision of McClellan CJ  in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 47 at paragraph 88 where His Honour stated:  A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. The provision may have the obverse effect of ensuring that DCP provisions have effect in accordance with their terms regardless of their previous (or potential future) inconsistent application.

However, how can there be consistency and transparency in decision making if the Act itself requires consent authorities to ignore the manner in which a DCP has been applied in the past?

Councils, on behalf of their communities, use DCPs to regulate car parking requirements for proposals; to seek minimum standards for sunlight, view sharing, set backs, building lines, height controls; in fact all the basic issues which create quality housing and construction.

Take one example, based on the Zhang v Canterbury case cited above.  This was a matter where the Council, through its DCP, sought to keep brothels away from sensitive residential areas and places of public worship. If a brothel is a permitted use in a particular zone, and this Bill is passed, attempts by councils to carry out the wishes of their communities by locating brothels in particular areas by way of their DCP will be compromised.

Further, it is not as if the State Government is without power to act against Councils that have overly onerous DCPs.  During the limited debate in the Assembly on the Bill, an example was quoted of a Council where its DCP regulated the location of the dog kennel in residential development applications.  If DCPs are creating problems as severe as the Minister complains of, why does he not use his existing powers under section 74F of the Act to direct a council to “make, amend or revoke” a DCP?

The power of a DCP is derived from it being a matter for consideration under s79C of the Act when the consent authority comes to assess a proposal.  With strict limits on what may be included in a Standard Instrument LEP, to water-down the force of DCPs  may make the development industry happy, but what will it do to the average citizen who looks to Council to underwrite the quality of the built environment in which we all live and work?

How will Councils ensure that developers construct buildings that seek to maintain and improve quality?  Could this amendment be the starter’s gun, launching a race to the bottom with the quickest build in the fastest time for the lowest price?