New rules on varying development standards

24 August 2011

Last Friday, the NSW Department of Planning and Infrastructure published a new document: Varying development standards: A Guide – August 2011. It sets out rules on how consent authorities should treat requests to vary development standards under State Environmental Planning Policy 1 – Development Standards (SEPP 1) and similar provisions.

This document has been produced secretly by the Department and no consultation has taken place with industry or the wider community. It is now in force. It has the potential to effect development applications in the system right now.

Parts of the new guide breathe new life into long dormant provisions in a 1989 departmental circular, titled B1 – Guidelines for the use of State Environmental Planning Policy No. 1. Other parts of the guide are completely new. Either way, the circular reduces the clarity offered by a series of court decisions over the past decade.

The guide also relates to the SEPP 1 – equivalent provision (generally known as “clause 4.6”) in the new Standard Instrument LEPs. As circular B1 did not apply to this provision, almost all of the guide’s provisions are completely new for Standard Instrument LEPs.

The publication of this document, in final form, without consultation, is most disappointing. It suggests that the Department of Planning and Infrastructure is not as committed to a substantive engagement with industry as we have recently been led to believe.

This document will make the development process more difficult for two reasons.

Firstly, it misstates the law in key respects, thus causing confusion amongst consent authorities and applicants alike.

Secondly, and more seriously, it lays down new policy guidance that has the potential to fundamentally alter the recent application of SEPP 1.

In our view, there was no need for this guide to be published. Since 2007, participants in the NSW planning system have benefited from an excellent guide to the application to SEPP 1 in the form of a judgment by Justice Preston, Chief Judge of the Land and Environment Court. The decision is known as Wehbe v Pittwater Council. It has been cited or applied in 51 separate judgments of the Land and Environment Court since it was made in 2007. It has served an important information resource for many thousands of development applicants over the last four years.

The Department’s new guide clearly seeks to undermine Wehbe v Pittwater Council by seeking to raise new factors to be considered when applying SEPP 1 and the more recent clause 4.6. The guide has clearly been prepared to exploit a 2003 NSW Court of Appeal decision declaring that environmental planning instruments are not the only documents that can be used to block new development, and that a consent authority is able to refuse permissible development by referring to a wide range of material outside the formal planning processes, on “public interest” grounds.

This new 22 page guide will join the more than 1,060 existing Department of Planning and Infrastructure policy documents regulating development in this state.

Our specific concerns can be briefly summarised as follows:

1. There is a policy statement asserting that SEPP 1 and clause 4.6 are only to be invoked in “exceptional cases” this will reduce the ability for genuine merit assessment.
2. The guide’s statements on “cumulative effects” ignore the limitations laid down by the courts.
3. Councils are urged not to take into account draft plans for the purposes of varying development standards, but remain free to refuse development based on possible future restrictions.
4. The new restrictions on “existing use” expansion are not justified.
5. The guide misrepresents the circumstances in which a SEPP 1 objection can be upheld.
6. The guide fails to acknowledge that councils only need to consider state and regional planning considerations when they have “assumed concurrence”.
7. The guide gives the wrong advice on the relationship between SEPP 1 and non-discretionary development standards.

We have advised the government that, given these problems, the new guide should be withdrawn as a matter of urgency.

The new guide to varying development standards is here.

Our detailed submission setting out our concerns with the new document is here.