Posted on August 22, 2013 by
Revision of Planning Principle in Pafburn v North Sydney Council
In Davies v Penrith City Council  NSWLEC 1141 (Davies), Senior Commissioner Moore has revised the planning principle regarding general amenity impacts established by Senior Commissioner Roseth in Pafburn v North Sydney Council  NSWLEC 444 (Pafburn).
The planning principle in Pafburn was in the following terms:
The following questions are relevant to the assessment of impacts on neighbouring properties:
- How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
- How necessary and/or reasonable is the proposal causing the impact?
- How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?
- Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
- Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal
In respect of the second question, Roseth SC in Pafburn said:
…in assessing the impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from the reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal that adding a balcony to a dwelling that already has six.
In Davies, Mr. Davies sought approval for a carport which did not comply with any of the relevant planning controls.
Mr. Davies argued that the scale and design of the carport was necessary as it had to accommodate 5 cars due to the lack of available public transport, as well as the fact that his wife suffered from muscular dystrophy and it was necessary for her to be able to access a vehicle undercover. Moore SC did not accept either of these arguments.
Moore SC discussed the planning principle in Pafburn and in particular question 2.
He said that clearly there are some elements of a development which are ‘necessary’ such as water supply and proper sanitation. Those matters would obviously be considered in the development assessment process in any event. However, he was concerned that the use of the word ‘necessary’ raised the risk of requiring a consideration of what might be necessary for the present or proposed occupants or the beneficiaries of any consent. This case highlighted this risk, given the arguments regarding the particular circumstances of Mr. Davies wife.
Moore SC pointed out that planning is not concerned with the personal requirements of applicants, and that development consents run with the land and are to be considered on that basis.
Moore SC therefore considered it appropriate to delete the words ‘necessary and/or’ from question 2 of the Pafburn principle.
It is to be noted that the Land & Environment Court’s website now lists Davies, not Pafburn as the case containing the planning principle in respect of general impact. Planners citing the planning principle should also note the change, and now refer to the revised principle as contained in Davies.