The Decision Makers
Development application assessment is undertaken within a legal framework established by the Environmental Planning and Assessment Act 1979 and Regulation. In a practical sense, it involves a balance of:
regulatory requirements;
numerical compliance; and
performance based, or merit, considerations.
Steps in the process
The assessment officer will commonly start by visiting the DA site and seeing how it relates to surrounding properties. They will read all the DA documentation provided by the applicant (the architectural/landscape/engineering plans, statement of environmental effects, supporting expert reports and so on) and will start to frame up what ‘key issues’ the development applications raises.
The assessment officer will also:
check that the DA documentation is adequate and if they consider it is not, they may issue a ‘Request for Information’ requiring that the applicant prepare further or better supporting information. Note that if the DA documentation is adequate the council is obliged to accept and deal with it!
send out ‘internal referrals’ to other council departments asking for their comments (landscape, engineering, heritage and so on) and external agencies (eg Sydney Water) as required by applicable legislation.
consider the submissions raised by neighbours, once the notification period has ended.
go through each of the statutory controls (SEPP/LEP) and Development Control Plan controls and record where there is compliance and non-compliance with numerical/technical controls. At the same time, they will make various merit assessments about the development. This is an iterative process; for example, if the development does not comply with a Height standard the officer will look particularly closely at impacts arising from that ‘extra height’ in terms of, for example, overshadowing, views and privacy.
Assessment officers:
will look more closely/critically at impacts arising from developments that do not comply with numerical controls.
will consider the objectives of the controls when considering whether a variation should be allowed.
must be flexible in applying DCP controls and consider whether a different design approach would achieve the same outcome sought by the control.
for a development breaching an LEP standard, must consider the ‘clause 4.6’ submission provided by the applicant and whether the variation is justified.
At any stage, the officer may form a view the development raises fundamental problems and recommend the DA be withdrawn. The officer may alternatively indicate to the applicant that design changes are required. The applicant may, but is not obliged to, withdraw the DA or make changes. It may agree to make different changes or it may simply ask for the DA to proceed to determination. It may also, after the regulated period for assessment has expired, elect to file an appeal to the Land and Environment Court.
Assuming the DA does proceed to determination, once everything has been considered, weighed up and assessed the Council officer will write a report. This might be a ‘delegated’ report, if the development application is not required to be reported to the local planning panel, otherwise it will be a report which concludes with a recommendation to the local planning panel as to how the development application should be determined. The recommendation might be:
For approval, with conditions. The conditions may include requirements for design/operational amendments.
For refusal, with reasons of refusal provided.
The local planning panel will take account of the report but will not necessarily accept its recommendations. It may determine to refuse an application that has been recommended for approval and vice versa. It might also impose different or additional conditions to those recommended by the assessment officer.
When are changes required?
There are no set rules, however it is more likely the applicant will be required to make or consider changes when there are one or more non compliances with planning controls, particularly where:
these non compliances give rise to identifiable impacts, either on the local environment (eg streetscape or heritage) or on neighbours; and
where there is a clear nexus between the impact and the control that is varied - particularly where the regulation of that particular impact is referenced in the planning control’s objectives.
The assessment officer will consider what objections have been made, how reasonable those objections are and whether changes could be made to the development to alleviate or remove the impacts. If the development is compliant, but still gives rise to significant impacts the assessment officer will still consider whether changes could be made which would alleviate the impacts. The approach often adopted is whether the impact could be reduced without materially altering/reducing the amenity of the proposed development, (often referred to as ‘more skilful design’). Where there is full compliance the case for requiring change is not, however, so compelling. For developments having materially significant impact the process might look something like:
For some types of impact the applicable assessment framework is largely merit based. A good example is streetscape/urban design and heritage impact. In these cases the assessment officer will have regard to what the planning controls (more usually in the DCP) says about that matter and may call on expert advice, such as from Council’s urban designer or design review panel and heritage expert. Design amendments will be sought on the basis of that advice. For some types of impacts, reference may also be made to the Land and Environment Court’s planning principles - a common example is the ‘Tenacity’ principle which sets out a five step process for assessing ‘view impact. This principle is a good one to read as throws light - more generally - on how planning professionals approach the task of looking at the reasonableness of proposed developments and circumstances under which amendments might be sought.
Who makes the decision?
For DAs dealt with by your council the DA will either be determined by:
The Local Planning Panel appointed by the council, either in a public meeting or by electronic determination. The Minister for Planning gives directions as to which DAs must be dealt with by the panel. They include contentious DAs falling into several categories, DAs that depart from LEP development standards by more than 10% or non numerical standards, and sensitive development, listed under various categories (including, for example, demolition of heritage items and residential flat development falling under SEPP 65). DAs with less than 10 unique objections are able to be dealt by ‘electronic determination’ ie they will be dealt with by the panel but not in a public meeting.
Council officers, in all other cases.
Note: you will have the opportunity to present to the decision maker in person when the DA is to be determined by a local planning panel in a public meeting. DAs determined by council officers, or by the panel by electronic determination, do not usually allow that opportunity, however protocols between councils vary so check with your council as to what procedures apply.
Regional Planning Panels
There are 5 Sydney planning panels and 4 regional planning panels across NSW. The NSW Government provides the administration for the panels, but each panel is an independent body that is not subject to the direction of the Minister for Planning. The panels determine regionally significant development that is larger in investment value, scale and/or complexity including projects with a capital investment value of more than $30 million (or less, if meeting certain criteria), and nominated projects having potential for high environmental impact (such as extractive industries and marinas). Each panel has at least 3 members: a chair and 2 regular members appointed by the Minister for Planning. Local councils may nominate another 2 members, so there can be five members in total.
The process of development assessment and the procedures of regional planning panels are similar to those for local planning panels, albeit that the issues raised will often be more complex and/or technical. As an objector, you will be able to to attend and address the panel, similar to the process for local planning panels.
State Significant Development
State Significant development includes development over a specific size, is in an environmentally sensitive area or over a nominated capital investment value that is of social/economic/environmental significance at State level, including, as examples, chemical industries, tourist and recreational facilities, waste management. SSD also includes development on sites of importance to the State, including Sydney Opera House and Olympic Park. The Department of Planning and Environment coordinates the assessment of all SSD projects under the EP&A Act and they are determined, by the Independent Planning Commission or the Minister. You can find out more about the decision path for SSD on the Independent Planning Commission and NSW Department of Planning websites.
Learn more
To understand/learn about how development assessment works it’s really useful:
to look at earlier assessment reports on your council’s website – search for ‘local planning panel’ and ‘agendas’ try and find a report dealing with a similar development.
to read the NSW Land and Environment Court planning principles. These are not binding on councils, but give some insight into the way development impacts are assessed. Some are formally relied on in Council DCPs (for example, the ‘Tenacity’ view impact principle) and others are often quoted in assessment reports dealing with issues like streetscape, character and visual bulk.
