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Australia – The Rise And Fall Of The Development Control Plan.

8 December 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment

 

Over the past few years, decisions of the Land and Environment Court 
and Court of Appeal have gradually increased the role and importance of Development Control Plans (DCPs). In response to these decisions, the NSW Government has introduced the Environmental Planning and Assessment Amendment Bill 2012 (Bill) to clarify the role of DCPs in the planning framework with the overall aim of facilitating an increased supply of housing. The Bill has been passed and now awaits assent. 
 
Clarifying the purpose of DCPs  
 
The rationale behind the Bill is that DCPs pose a two-fold problem to the 
issue of housing supply:
 
  • Court decisions have placed greater importance on DCPs where they are applied consistently by councils. As a result, councils have given determinative weight on DCPs when assessing development applications and are less willing to depart from the guidance provided in the DCPs. 
  • The controls in DCPs are complex and prescriptive and make it hard for projects to comply with the controls.
 
The purpose of DCPs
 
To address these problems, the Bill clarifies that the principal purpose of 
DCPs is to only provide guidance and will serve the purpose of implementing Environmental Planning Instruments (EPIs) (Local Environmental Plans or State Environmental Planning Policies).
 
As a result, the consent authority is to give less weight and significance to DCP provisions than is given to EPIs and cannot have regard to how those provisions have been applied previously or might be applied in the future. 
 
Furthermore, the Bill provides that DCPs will have no effect, to the extent its provisions are inconsistent or incompatible or are the same or substantially the same as the provisions in an EPI. The DCP will also have no effect if it prevents or unreasonably restricts development that is otherwise permissible under an EPI. 
 
Overall, the amendments aim to reduce the status and importance of 
DCPs when it comes to development applications and reinforces that more weight is to be given to EPIs. Consent authorities will still be able to assess development against their existing DCPs, but now must adopt a more flexible performance-based approach. The Minister has stated that the reforms are not an opportunity for councils to include unnecessary development controls in their local environmental plans (LEPs), or to delay the preparation of their 
LEPs.
 
Other changes
 
The Bill also includes measures to facilitate the growth of housing 
development and remove the need for unnecessary assessment and 
approvals:
 
  • Amendments relating to bush fire prone land in urban release areas – for example, the Bill will allow the assessment of bushfire risk to be undertaken at the subdivision stage, which will remove the need to reassess bushfire issues for subsequent development applications. It will also enable regulations to exclude certain residential development on bush fire prone land from the special consultation and development requirements of the NSW Rural Fire Service.
  • Amendments to the Threatened Species Conservation Act 1995 – this amendment will streamline the biodiversity assessment process for Sydney’s growth areas, by clarifying the provisions relating to biocertification of planning instruments in Sydney’s growth centres to ensure they apply to all EPIs applying to the land and to all development assessment processes. 

 

 









For further information, please contact:

 

Dr Nicholas Brunton , Partner, Henry Davis York

nicholas_brunton@hdy.com.au

 

Harshane Kahagalle, Partner, Henry Davis York

harshane_kahagalle@hdy.com.au

 

Liz Wild, Partner, Henry Davis York

elizabeth_wild@hdy.com.au

 

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