Posted on March 26, 2015 by Megan Hawley
Planning Agreements and Breaches of Development Standards
The Department of Planning’s Development Contributions Practice Notes – Planning Agreements (July 2005), and many local councils’ planning agreements policies provide that benefits provided under planning agreements should not be used to justify a contravention of development standards.
In the recent case of Jubilee Properties v Warringah Council [2015] NSWLEC 1042, the Court rejected an attempt by a developer to do just that.
The proposed development in question exceeded the height development standard in the relevant planning instrument by more than 100%.
Clause 4.6 of the planning instrument requires that in order for consent to be granted to a development which contravenes a development standard, the consent authority must have considered a written request demonstrating that the application of the development standard is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify the contravention.
The applicant’s written request relied in part on the provisions of a planning agreement agreed with the Council.
Under the planning agreement, Council was to be provided, if development consent was granted to the development, with benefits to the value of $2,665,500 comprising a cash payment, some floor space and parking spaces within the development, new public toilets and demolition of existing toilets.
The Commissioner gave the planning agreement no weight, in determining whether she was satisfied that the development standard could be contravened.
The Commissioner held that the consideration of ‘environmental planning grounds must be limited to tangible controls that can be consistently applied across a locality. It does not extend to other extenuating circumstances that may give rise to other decisions in relation to built form.’
This does not mean that a planning agreement is not a relevant consideration in carrying out an assessment of a development application under s79C of the Environmental Planning & Assessment Act 1979. In fact, it is a mandatory consideration. However, the decision does reinforce the position that benefits under a planning agreement should generally not be considered in determining whether a breach of a development standard is acceptable.
It could be that in certain cases the benefits under a planning agreement directly address or mitigate the impact of a contravention of a development standard such that the objective of that standard is met by the development. In such a case, in my view the planning agreement would be relevant to the cl4.6 assessment, given that Wehbe v Pittwater Council [2007] NSWLEC 827 indicates that compliance with the objective of a development standard is one way to establish that the application of the standard is unreasonable or unnecessary.
Leave a comment
in focus comments policy
LTL welcomes your feedback and comments on our posts. all comments, however, will be moderated and we reserve the right not to publish any comment for any reason.
LTL in focus is primarily designed for public sector and development professionals dealing in the fields of planning, environment and government. you may, therefore, wish to consult your organisation’s social media policy before you post any comments. it should go without saying that we expect all comments to maintain a level of respect and professional courtesy.
In making a comment you are required to provide your email address, this will not be published on the site. if the moderator chooses to publish your comment, the name you provide will be published with your comment – it is your choice whether you provide your full name or just your first name. if you provide your full name, we may seek to verify your identity prior to publication of your first comment. If you wish your comment to be directed only to the author or moderator please make that clear – marking it NFP or Not For Publication is the easiest way. thank you for your support and happy reading – matthew mcnamara, ceo.