Posted on April 8, 2014 by

Planning principles update – Landscaping principles MIA

Two planning principles have recently been removed from the list of principles published on the Land and Environment Court website, both with respect to landscaping. However, it seems that the principles still exist and can be referred to.

Since October 2013, Super Studio v Waverley Council [2004] NSWLEC 91 (Super Studio) and Falcomata v Ku-ring-gai Council (No.2) [2005] NSWLEC 459  (Falcomata) no longer appear on the list of planning principles (List) on the Land and Environment Court (LEC) website.  Aspects of the planning principles in those cases have been revised or overtaken by subsequent decisions, but other elements of those cases relating to landscaping still seem to be applicable.

Super Studio – general impact

LTL previously reported on the decision in Davies which revised the planning principle with respect to the first point in Super Studio vis a vis the reasonableness and necessity of  impacts. In Meriton Property Services Pty Limited v Minister for Planning and Infrastructure [2013] NSWLEC 1260 (Meriton), the inconsistency of Super Studio with Davies was identified by Senior Commissioner Moore at [46]-[47]:

[46]   In this instance, following a review by the Commissioners of the Court of the planning principle in Super Studio, we have reached the conclusion that, with respect to the first point of that planning principle, it should no longer be observed and that the planning principle that is set out in Davies is the appropriate planning principle for that element in the future.

[47]   With respect to the second element of the planning principle in Super Studio, it should, at least for the time being, remain-although it may be appropriate, on some future occasion, for the Commissioners of the Court to revisit and perhaps expand on that.

However, the second element of the planning principle in Super Studio is that if landscaping is proposed to be the main safeguard against overlooking, then it should be given minor weight, because the effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck.  Since Meriton, however, Super Studio has been removed from the Court’s List entirely.

Falcomata – landscaping

There were also two planning principles established in Falcomata, in summary:

i – Conditions which require cash bonds for maintenance or protection of landscaping have no lawful planning basis ([26]-[42]) (First Principle).

ii – Condition requiring maintenance or protection of landscaping may be included in development consents ([52]-[53]) (Second Principle).

Although it is not specifically mentioned,  the First Principle has been confirmed by the binding decision of Justice Lloyd in Charalambous v Ku-ring-gai Council [2007] NSWLEC 510 (Charalambous).  Accordingly, there is no need for a planning principle on that matter.

However, there have been no decisions, like Meriton, in which it has been suggested that the Second Principle should no longer be observed.  Nevertheless, Falcomata has also been removed from the Court’s List.

Why did this happen?

Senior Commissioner Moore published a paper in October 2013 in which he discussed the future of planning principles in the LEC (Paper).

In the Paper, Moore SC explained the process by which planning principles are established, which in summary is:

  • principles are established after discussion and consensus between the Commissioners, Chief Judge, and other Judges.
  • principles which are prescriptive should be replaced with process orientated principles (see LTL’s report on Edgar Allen being replaced by Coorey.)
  • principles which are regarded as having fulfilled their purpose ‘should be allowed to slip quietly into history‘.

It appears that the Court may indeed be allowing the remaining aspects of Super Studio, and possibly also Falcomata to slip away.  However, it seems to me that the elements regarding landscaping have still not been given negative treatment and so should still be able to be cited for those purposes.

In the result, the Court’s List should also not be relied upon as a complete list of planning principles.