The Basics
With a few exceptions, all planning controls are able to be both:
changed – ie superseded or replaced; and
varied – ie development is permitted which does not comply.
Why? Firstly, it makes sense for controls to be regularly reviewed or changed – as society’s needs and expectations evolve we need different things – more housing, better designed buildings, more care for our environment and so on. The planning system adapts by introducing new controls.
But even when the controls are in place, they are able to be varied or ‘not complied with’, and again for good reason: put simply, the built and natural environment is itself so varied and complex it would be unrealistic to assume that a control will be universally relevant and that it will always achieve the desired outcome.
The default position, therefore, is that development should comply, but there will be situations where it would be unreasonable or unnecessary to require strict compliance.
Objectives and controls
Each development proposal is considered on its individual circumstances. Regard will be had not just to whether or not it ‘complies’ but also as to whether it meets the objectives that the control is trying to achieve. The controls are best viewed not as an end in themselves, therefore, but as a means of achieving specified outcomes or objectives.
Example
Here’s a simplified example of how this works for a Height control with ‘protection of a park’ as its objective:
Objective: to minimise overshadowing of Green Park.
Control: building height to the north of Green Park is limited to 12 metres.
In the diagram below the allowable height control is indicated by the red block and the DA proposed, by the grey block. It can be seen that:
if development complies with the Height control the objective of that control - ie minimising overshadowing the park - will be achieved.
the DA proposal (in grey) is non compliant with the Height control and its shadow extends over the park. Ordinarily this DA would be contrary to the control’s objective and so the control would not be varied to allow the development to proceed.
Now, however, take into account the shadow impact of the existing building to the north. It casts a bigger shadow than the non compliant DA proposal. In this circumstance the objective of the control is not offended since there is no additional overshadowing of the park. If the DA’s shadow falls entirely within that of the existing building then the control is likely to be varied to allow the development to proceed.
Note that, In practice, most controls have more than one objective. For a variation request to be successful, all of the relevant objectives would need to be considered.
How are controls changed?
Controls in environmental planning instruments (LEPs and SEPPs) are changed through the gazettal of a new environmental planning instrument. The new instrument can change or replace part of the original instrument (eg a locality might be ‘up-zoned’ to allow a higher density of development) or all of it, ie a new ‘comprehensive’ LEP covering the entire local government area. Once ‘in force’ the new LEP will be available on the council’s website and also the NSW legislation website.
Controls in DCPs are varied by Council adopting a revised version of the DCP or an entirely new DCP which supersedes the old one. Once adopted and ‘in force’ the new DCP will be published on your council’s website. Significant reviews/amendments will be based on a variety of studies and will involve community consultation.
Be aware that ‘transitional provisions’ will often apply - that is, a DA lodged under the ‘old’ set of controls will be determined in accordance with those controls even though a new set of controls have come into force before the time of determination. The ‘new’ LEP or DCP will explain if these transitional provisions apply and if so, how. Be warned - transitional provisions can sometimes be very hard to understand!
How are controls varied?
Environmental Planning Instruments (LEPs/SEPPs)
A DA that is non compliant with SEPP and/or LEP controls (or ‘development standards’) can only be approved if the variation is first justified by a written statement, prepared by the applicant, which satisfactorily addresses various tests in clause 4.6 of the instrument. You can see an example of this clause (from Sutherland LEP 2015) here. A ‘clause 4.6 submission’ will usually form part of, or be attached to, the applicant’s SEE.
Note that land use zoning controls cannot be changed by clause 4.6 submissions. If a proposed development is not allowed under the zoning control it is ‘prohibited.’
The clause 4.6 submission will set out the particular grounds as to why the applicant says the control should be varied, usually drawing on the great deal of case law. The consent authority cannot approve the development unless it is satisfied the cl.4.6 submission is satisfactory and well founded.
Note that Modification applications are subject to slightly different considerations, including that variations to development standards do not need to be supported by a clause 4.6 submission. The objectives of the standard will, nevertheless, form part of the council’s assessment of the merit of the modification.
Development Control Plans
Development controls found in DCPs are able to be varied without need for a clause 4.6 submission. It is important to understand that councils are obliged by s4.15(3A) of the EPA Act to apply these controls flexibly and allow reasonable alternative solutions that achieve the objects of those standards. If an applicant wants to vary a DCP control the council assessment officer will look at the merit, including how well the development satisfies the objectives of the applicable control.
Why is ‘prohibited’ development sometimes allowed?
Your home is in an ‘R2’ low density residential zone which states medical centres are ‘prohibited’ - so how is someone able to put in a development application for a medical centre in your street?
The answer will often lie in the fact that there is a State Environmental Planning Policy (SEPP) which operates to override the local planning controls. In the above example, it would be SEPP (Transport and Infrastructure) 2021 which allows that development for the purpose of health services facilities may be carried out in particular zones whether or not the LEP allows it. Boarding houses and affordable housing are other examples of development permitted by a SEPP (SEPP (Housing) 2021).
There are other explanations for seemingly ‘prohibited’ development to be allowed. The site might have what are known as ‘existing use rights’ or the LEP might have ‘additional use provisions’ which apply only to specified sites, disregarding the zoning that otherwise applies.
It generally takes some prior knowledge and experience to work out what is going on when development is proposed that seems inconsistent with the local planning controls. A good place to start is the applicant’s ‘Statement of Environmental Effects’ since this will usually explain how it is that a seemingly ‘prohibited’ development is being submitted for approval. Failing this, speak to the council’s assessment officer.
Be aware that planning mechanisms which enable ‘seemingly prohibited’ development to occur are often quite difficult to interpret and understand. If there’s a lot at stake this may be an example of a situation where professional assistance might be helpful.
SEPPs and development assessment
SEPPs can also have the effect of changing or expanding the things consent authorities take into account in assessing development applications. SEPP (Housing), for example, establishes principles for residential flat development and requires the consent authority to consider the NSW Government’s Apartment Design Guide (ADG). It also provides that the ADG overrides any inconsistent provision of a council’s DCP on a range of topics.
Submissions on ‘non-compliant DAs’
A ‘compliance’ assessment always forms a core part of a council’s review of a development application. As a starting point, a fully compliant development will be viewed as ‘more reasonable’ than a non compliant one, and the more non-compliances there are, and the greater the numerical significance the non-compliance, the less ‘reasonable’ the non-compliant development is likely to - at least at first - appear.
By the same token objections to a particular aspect of a development application will be viewed more or less sympathetically, depending on whether or not the development ‘complies.’
Be aware though:
compliance isn’t the only aspect of ‘reasonableness’ - if a development is causing an impact that could easily be avoided that might also be seen as ‘unreasonable’ for example.
that a development application that does not comply with some, or many of the planning controls can still be approved if, when all things are considered, it is assessed as having merit, meets the objectives of controls and has no - or at least an acceptable - impact arising from the non-compliance.
Although it is not at all essential to the making of your submission, some understanding of the performance of the DA against the planning controls will provide context and enhance your submission. You must always bear in mind, however, that it is the impact on you that is important, rather than simply the ‘number’ or the technicalities of the control.
A good way to approach your submission is:
Explain your concern: “I am really worried the development will overshadow our rumpus room where my family spends a lot of leisure time.
Identify the aspect of the proposal causing the impact: “This overshadowing is worse because of the height of the development…
Identify if the development is non compliant: “…which I see is non compliant.”
Refer to the control’s objective, if relevant: “The impact seems particularly unreasonable bearing in mind an objective of this control is to minimise overshadowing.”
Remember that the most effective submissions are short and focussed. Don’t get too fixated on the controls and don’t quote large chunks of the LEP or DCP in your submission - the council’s assessment officer already knows the controls and will not appreciate having to wade through pages and pages trying to work out what your core concerns are.
