Posted on June 20, 2013 by Megan Hawley

Protection of Suburban Character under the White Paper

One of the reforms proposed in the A New Planning System for NSW – White Paper (White Paper), is a reduction in the number of land use zones. The White Paper proposes only one residential zone which will include ‘Suburban Character Areas and areas with special ecological attributes’. However, there is doubt about whether those Suburban Character Areas and areas with special ecological attributes can be adequately protected.

The White Paper indicates that the new zones will focus on land use, not the intensity of development and will contain fewer prohibitions. It states that ‘Specific Suburban Character controls, for example to exclude medium or high density development, will be contained in Part 3 Development Guides.’

Therefore, it is assumed that the residential zone in the planning control provisions of the local plan will not prohibit higher density forms of residential development such as residential flat buildings in any area, including in a Suburban Character Area or area with special ecological attributes.

 ‘Part 3 Development Guides’ means Part 3 of a local plan, being that part of the local plan which contains development guides.

However, the exposure draft of the Planning Bill 2013 makes it clear that provisions in development guides:

• have no effect if they are inconsistent or incompatible with the planning control provisions of the local plan, which includes the land use zones;
• are intended to ‘facilitate permissible development’; and
• can only be considered, if at all in the merit assessment process, as a guide to appropriate development.

Given those provisions, it is difficult to see how, if a planning control provision permits residential flat buildings, the development guide could prevent or restrict residential flat buildings in a particular area. Surely such a provision would be inconsistent with the planning control provisions which make that form of development permissible, and could not be said to facilitate that permissible form of development.

Whilst councils might give the provisions of the development guides significant weight in the merit assessment process, it is to be expected that on appeal, developers dissatisfied with a decision of the council would argue that the controls for the Suburban Character Area or ecological area were a guide only and are ineffective in any event, when applied to restrict permissible development.

It may be that there will be some provision in the standard instrument on which local plans are to be based which indicates that a development guide can permissibly restrict certain types of development in Suburban Character Areas or ecological areas. For example, the land use table for the residential zone might indicate that permissibility is subject to the development guide provisions for such areas. If that is the case, then this is really just reintroducing further land use zones, but in a less transparent manner, by moving them out of the planning control provisions and into the development guide provisions of the local plan.

In the absence of such a provision in the planning control provisions however, it will be difficult for consent authorities to protect Suburban Character Areas and areas with special ecological attributes.

See our earlier blogs on Strategic Planning under the White Paper which contains some further comments on the status of development guidess, and Development Control Plans Alive and Well and The death of Development Control Plans  regarding the amendments made to the Environmental Planning & Assessment Act 1979 earlier this year in regard to development control plans, which are similar in some respects to the proposed provisions of the Planning Bill regarding development guides.