Home' MFAA Prosper : Mortgage and Finance Brief 19 Contents Mortgage & Finance brief 49
cur rent planning system), but will include
apartment buildings, office buildings and
even shopping centres.
Sitting alongside that system will be a
merit assessment stream. Development that
does not fit within the 'code assessable'
building envelopes may still be approved,
but will be assessed on its merits, against the
This might occur if the developer
considers that a larger building yield is
warranted on a particular site and/or that
market conditions have changed since the
'code assessable' envelopes were set. In that
case, the developer can chance their arm by
lodging a development application.
Critically -- and this is a fundamental shift
away from the current system in NSW --
only those parts of the development that
exceed the pre-set envelopes will be assessed
by the council. The development will be
code-assessed on the compliant component
of the development and subject to a limited
merit assessment on the non-compliant
portion. This will be hugely welcome news
NEW REVIEW RIGHTS FOR
In a separate move, subsequent to the
release of the green paper, the government
announced that from 2 November 2012,
developers and landowners will be able to
formally apply for a review when a local
council blocks a spot rezoning application.
Under the previous system, there has
never been any right for a proponent to
appeal to the Land and Environment Court
(or elsewhere) when a rezoning application
is blocked by a council in NSW -- no matter
how spurious or politically motivated the
council's decision may have been.
The new system will not allow any
appeals to the Courts but will allow
reviews to be conducted by various
planning authorities who can overrule
a council's decision -- namely the joint
regional planning panels and the Planning
However, the review application will first
have to be authorised by the Department of
Planning, therefore there remains a risk of
uncertainty with this process. Nevertheless,
it is an important step in the right direction,
and is certainly long overdue.
DEVELOPMENT CONTROL PLANS
SET TO BE WATERED DOWN
At time of writing, the gover nment is also
seeking to ram new legislation through
parliament that will see DCPs significantly
watered down in terms of their ability to
DCPs are perhaps the primary tool
used by councils to control and limit
development that may other wise be
approved. They are often a detailed
document -- in some cases more than 1000
pages -- with highly proscriptive r ules that
tend to stifle development that is other wise
permissible in a particular zone.
Importantly, they are not vetted or
approved by the gover nment or by the
Department of Planning (unlike LEPs),
so councils tend to have autonomy to
create whatever r ules they like in a DCP,
sometimes expressly to kill off a particular
development on a particular site.
Of course, many DCPs are sensibly
drafted and contain appropriate controls
on development. Nevertheless it has to
be said that DCPs are preventing much
development (and new housing) from
Under the new laws, the principal
purpose of a DCP will be merely to provide
guidance and in doing so, to give effect to
the aims of LEPs, to facilitate permissible
development and to achieve zone objectives.
Conversely, DCP provisions will be void
if they have the practical effect of either
preventing or unreasonably restricting
development that is other wise per mitted
and complies with the development
standards set out in the relevant LEPs.
Finally, when councils are assessing
development applications, it will be a
requirement that DCPs be given less weight
and significance than LEPs. This is a breath
of fresh air for developers, landowners and
the housing industry generally, but already
is being met with scaremongering by local
For more detailed coverage of these
proposals, view the 'publications' section
of the Gadens Lawyers website, which is
updated regularly: http://www.gadens.
Anthony Whealy is a Partner, Accredited Specialist Local
Government & Planning, at Gadens Lawyers Sydney.
The information presented in this article is intended only
as a guide to the topic and the matters discussed and
does not necessarily represent the views of the MFAA. This
article is not legal advice and must not be relied on as such.
plans will immediately
rezone land so that
opportunities can be taken
up as rapidly as possible.
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