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.