The Basics
Planning controls are found in environmental planning instruments such as a local environmental plan (LEP) or State environmental planning policies (SEPPs). They are also found in development controls plans (DCPs).
SEPPs are prepared by State government and have a variety of different effects. Some apply controls over geographical areas, some add to the assessment requirements councils have to consider in dealing with DAs (for example, SEPP (Housing) 2021 provides design principles for residential flat development); some provide additional development potential to that provided by local environmental plans.
LEPs are prepared by local councils but must be prepared in accordance with a variety of requirements of the minister (who ultimately approves them).
DCPs are prepared by local councils. They must be generally consistent with the LEP. DCPs, for example, cannot impose more stringent controls than an equivalent control in an LEP.
Planning controls broadly fall into four categories.
‘Prohibitions’ found in environmental planning instruments only. A zoning control is an example of a prohibition, ie if a zone says flat buildings are prohibited then flat buildings may not be carried out.
An exception to this arises if ‘existing use rights’ apply, so, for example, if a residential flat building had been lawfully approved and used before an LEP comes into force which prohibits it, then it may (subject to various caveats) continue in use, be altered, or be redeveloped.
‘Development standards’ found in environmental planning instruments only. These are controls which stipulate how development should be carried out. An example is a ‘Height of Buildings’ development standard. A development standard can be varied but only if supported by written justification by the applicant, known as a ‘clause 4.6’ submission.
‘Performance based or merit’ controls, found in both environmental planning instruments and DCPs. These can take a variety of forms/styles. A common example is a provision that requires the consent authority to consider various environmental considerations before granting consent for a particular type of development.
‘DCP controls’ found only in – yes you guessed! – DCPs. These generally cover a broader range of matters than development standards found in LEPs (for example, setbacks, landscaping, overshadowing, privacy) and they must not be inconsistent with the LEP. DCP controls can be varied without need for a clause 4.6 submission and councils are required (by the EPA Act) to be flexible in their administration.
Do I really need to look at the town planning controls?
Knowing a little about the controls that apply will place some context to your concerns. The impacts of a development application that complies with controls will generally be held to be more ‘reasonable’ than one that doesn’t, and vice versa. The same philosophy applies to objections: an objection on grounds of view loss arising from a proposed building that complies with all planning controls will be considered in a different context to the same objection where the proposed building exceeds, for example, height and FSR controls. This does not mean that compliance with numerical controls is the end of the story by the way, but it does mean that impacts arising will be viewed more or less critically depending on the level of compliance achieved.
It is not, however, essential to know the controls. If you write in your objection that you are worried about the size of a new development, the council’s assessment officer will consider your objection in light of whether or not the development complies with things like building bulk (FSR), height and setback.
Where do I find the planning controls?
Your council’s website usually provides access to its LEP and DCP. Updated copies of the Environmental Planning legislation (eg the Environmental Planning and Assessment Act, 1979) and environmental planning instruments (including not only LEPs but also SEPPs) can also be found on the NSW Legislation website. To find North Sydney’s LEP, for example, scroll down to ‘Environmental Planning Instruments’ and click on ‘N’. All SEPPs are listed under ‘S’.
How do I know which planning controls to look at?
Assuming you don’t have the time, energy or inclination to trawl through every planning document, I’d suggest two options:
If your concerns are quite narrow you might just need to look at the two or perhaps three controls that govern the design and form of the development that gives rise to those impacts. If your ‘view’ is obtained over the top of a proposed building you would look at the Height control (found in an LEP or DCP). If your view is obtained though a ‘slot’ between the proposed building and a boundary you would look at the side setback control (found in a DCP).
If you are uncertain about the impacts, or generally uneasy about the proposed development a good place to start is by looking at the applicant’s statement of environmental effects (‘SEE’). The quality of these documents varies, and you may well not agree with what else it has to say, but the SEE should set out what controls apply and this will save you time in working it out for yourself. The SEE will also set out the applicant’s position as to whether or not the development ‘complies,’ which again is a good starting point for you to understand the ‘reasonableness’ of what is proposed - bearing in mind, of course, that the applicant’s position is not always agreed by council’s assessment officer.