The Basics
Different types of planning controls are found in Local Environmental Plans (LEPs), State Environmental Planning Policies (SEPPs) and Development Control Plans (DCPs) (see Understanding Planning Controls). They cover a very wide range of topics, but they are essentially made up of a number of simple “building blocks”:
The control itself: eg “Building height must not exceed 12 metres.”
The objectives of the control – ie the outcome/s sought to be achieved. These might be explicitly stated (as is common for LEP and DCP controls) or – as is more common for SEPPs - interpreted from the context in which they appear, including the overarching principles or objectives of the Policy itself.
The definitions of words and terms on which the control is constructed. Allied to this is interpretation – how words and terms are understood, and sometimes in the way case law says they should be understood.
Each of these elements is important in their own way:
the consent authority will have regard to whether or not a development complies with the controls, when making its first sweep assessment of how reasonable (or unreasonable) a development application may be.
when an applicant wants to vary a planning control the consent authority will have regard to whether the development achieves the objectives, even though it does not comply with the strict requirements of the control.
the way is which words and terms are defined and interpreted can have a very significant bearing on what the planning control will allow or achieve.
Example
North Sydney Local Environmental Plan 2013 provides a simple height control. As a standard template LEP, “the development standard” (the correct name for this type of control in an LEP) is found at clause 4.3.
Clause 4.3(1) provides the objectives of the control:
(a)to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,
(b) to promote the retention and, if appropriate, sharing of existing views,
(c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,
(d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,
(e) to ensure compatibility between development, particularly at zone boundaries,
(f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,
(g) to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone C4 Environmental Living.
Clause 4.3(2) provides the control itself:
“The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.”
Click on the Height of Buildings Map link which takes you to a list of all the LEP maps, then scroll down to “Height of Buildings Map” and find the link to the locality you are interested in.
Each map provides building heights for different localities. North Sydney is interesting in that for some areas it measures maximum height by an RL (reduced level) and other areas by a maximum height in metres, however it is more common for LEPs to measure Building Height in metres, particularly for lower density residential areas.
Now check the Definitions. Although the control in clause 4.3(2) seems straightforward, you cannot assume what the words mean without checking whether they are defined in the “Dictionary.” For standard template LEPs this is always found at the end of the LEP. Scroll through the Dictionary and you find:
Building height (or height of building) means—
(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or
(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,
including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
Again, you should not assume what words used within the definition mean, without checking through the Dictionary to see if any of the terms used are themselves defined. In the case of Building Height, for example, ‘ground level (existing)’ is a defined term. It means:
ground level (existing) means the existing level of a site at any point.
For a locality affected by a Maximum Building Height in metres, therefore, the control in its entirety is:
“the vertical distance from the existing level of a site at any point to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like, is not to exceed X metres.”
Note that the “standard template” LEPs (which is now most of them) rely on the same core set of definitions. Building height, gross floor space and landscaped area, for example, are the same irrespective of whether you are reading the LEPs of Manly, Hornsby or North Sydney.
Before you start
Before turning to any particular LEP control to find out how you are affected it is a good idea to:
Be clear on what type of development you are interested in, as different controls may apply. Is it a dual occupancy, a multi-dwelling development or a residential flat building for example? Check the definitions in the Dictionary.
Go through all the maps in the LEP and jot down all of information provided as to the status of the site: ie not just the particular control you are interested in (eg height, FSR etc) but other designations as well – such as whether the site is in a conservation area or foreshore scenic protection area. The reason is that LEPs can provide exceptions to general controls for sites with particular environmental attributes, and to achieve particular planning outcomes – see Sutherland LEP 2015’s version of clause 4.3 for example.
For the same reason, it is important to read the whole of the LEP, not just the specific control you are interested in. North Sydney LEP 2013, for example, provides not only the generally applicable clause 4.3 Height standard but also a separate division providing supplementary height controls for the North Sydney Centre.
DCP controls
DCPs generally provide a wider variety of controls than LEPs, including more qualitative topics (such as streetscape and urban character) as well as quantitative controls (such as minimum boundary setbacks and landscaped area).
Some DCPs controls may seem to cover the same ground as the controls in the LEP of the same local government area. The DCP, however, cannot override or be inconsistent with a control in the LEP. A DCP may include a ‘wall height’ control or a ‘building envelope’ control, for example, which allow the maximum LEP Height to be achieved but require a reduction in height closer to boundaries.
Like LEPs, DCPs will usually include objectives for each control and defined terms, which can be found under headings of ‘Definitions’ or ‘Interpretation’. Unlike standard template LEPs, however, the structure and format, as well as terminology and definitions used, varies widely between the DCPs of different local government areas. For this reason, it is important always to read the introductory sections of the DCP which explain how the DCP is to be used and applied.
Remember:
each type of planning document contains its own ‘rules’ as to how it is to be interpreted and the definitions are not interchangeable. You cannot, for example, assume that “building height” in a DCP means the same thing as “building height” in the LEP, even of the same local government area – unless the DCP explicitly says this is what you should do. Nor can you assume that ‘building envelope’ in the DCP of Inner West Council, for example, means the same as a ‘building envelope’ in the DCP of North Sydney or Northern Beaches Council. Core definitions for LEPs prepared under the standard template/instrument will, however, be consistent.
“Interpretation”
No matter how straightforward a definition may appear, differences of opinion often arise about “what the words mean”, including words used in controls that are not defined, and even words that are defined. These differences may then be argued out in the Land and Environment Court, which in turn can give rise to new ‘case law’ about what a particular planning word or term means. There are, for example, at least eight cases from the Land and Environment Court that have interrogated the meaning of “existing ground level.”
Unless you are a lawyer or planning professional, it will be difficult for you to identify and keep track of whether terms you are interested in are subject to case law, or what the prevailing interpretation for any particular term might be. A google search may be helpful (many law firms publish newsletters providing updates on the latest case law) but be aware this is a constantly evolving area of planning law. If the interpretation of a particular planning control is particularly important to you, it is advisable to seek professional advice from a law firm specializing in local government law.