O’Farrell’s begins to gut key planning laws – DCPs under attack

Despite a promise to return planning powers to the community, written in the “Contract with NSW”, the O’Farrell government is proposing to gut one of the key planning laws, Development Control Plans, relied on by local councils to protect local communities from overdevelopment.

This is a direct a breach of Barry O’Farrell’s much touted “Contract with NSW” where he said his government would "return planning powers to the community" and "give communities a say again in the shape of their community".

The move is again delivering a wish-list item of the developer lobby, in particular Urban Taskforce Australia, which has welcomed the proposed legislation with open arms.

The details in the Bill can be found here.

A. What are Development Control Plans (DCPs)?

DCPs are the fine-grained planning regulations that set out important planning controls to protect the amenity and character of local areas. They govern things such as:

• Limits on the size and location of high impact facilities such hotels and dog kennels;
• Maximum building heights to protect an areas’ character and amenity;
• Maximum floor space rations to prevent enormous buildings dominating small lots;
• Car parking controls to ensure that there is enough car parking provided;
• Heritage protection for important buildings and precincts;
• Minimum set-backs to the street to protect open space in the front of properties;
• Controls on the size of advertising signs and hoardings in commercial areas; and
• Minimum side and rear setbacks to prevent overshadowing and protect back yards.

Often councils have different DCPs for different localities in a local government area to protect and preserve the look and feel of an area. They are in fact the key planning instruments used by councils to protect the look, feel and future development in localities.

B. Where do DCPs fit in the current law?

DCPs are planning regulations that sit under other planning laws and regulations. They are subject to a local council’s principle planning document called a Local Environmental Plan (LEP). Both LEPs and DCPs are subject to state planning policies and the Planning Act (the Environmental Planning and Assessment Act).

The Land and Environment Court has consistently held that DCPs are important planning instruments adopted after extensive community consultation by a council.[1] They must be consistent with LEPs and cannot operate to prohibit classes of development that are permissible in an LEP, but they can “operate to confine the intensity of development otherwise permitted by a Local Environmental Plan.”[2]

Developers have long wanted to remove these controls to facilitate larger, more intensive and more impactful development. Barry O’Farrell is now delivering.

C. What is the government’s proposal?

The two key provisions in the Bill that deliver for the developers are the proposed ss74C(5) and 79C(3A). The combined effect of these provisions means that:

• Developers will be given a get out of jail free card if they don’t want to comply with DCPs if the DCP “unreasonably restricts development”;
• Maximum entitlements under DCPs such as the height and size of buildings will become “as of right entitlements” rather than the maximum allowable. This removed any assessment of impact of a development.

For example:

If the maximum height allowed for a development was 12 metres a developer can have this over the whole development regardless of the fact it may obliterate a neighbour’s views, sunlight or amenity.
• Councils will be required to be “flexible” in allowing development that breaches a DCP; and
• The ability of councils to take into account the cumulative impact of allowing a type or style of development in a locality will be removed

For example:

Not allowing councils to consider if the 5th pub being approved in an area will have an unacceptable cumulative impact be on residents; or

Preventing councils from considering if allowing large double fronted garages in the front yard of a development may provide a precedent for the rest of a suburb and destroy the existing leafy character

This will make most DCPs effectively worthless. Many DCPs, such as the Paddington Heritage Control DCP, have enormous support in communities and have protected and enhanced some of the most beautiful parts of the State. These protections will be lost if this Bill becomes law.

Media comments from Greens MP and Planning spokesperson David Shoebridge:

“If this becomes law it will strip local councils of the power to enforce their local planning instruments and protect residents from the effects of overdevelopment.

“In his contract with NSW Barry O’Farrell said he would ‘return planning powers to the community’ and ‘give communities a say again in the shape of their community’. This is a promise he has now broken.

“This proposal is setting a green light for developers to ignore the concerns of councils and force high impact developments such as hotels on unwilling local communities.

“DCPs are the fine grained controls that protect local communities from inappropriate development. This government intends to gut them.

“Changing the law to prevent councils from considering the cumulative impact of developments is forcing them to make short term decisions that will inevitably backfire on local communities.

“Councillors must be able to prevent inappropriate developments that will see pubs, bottle shops and other high impact facilities saturating their local communities.

“If this becomes law over the next few years we will see thousands of cases where greedy developers, or unthinking neighbours, will be maximising their private return blind to the impact on the local environment.

“As we did with Labor’s pro-developer laws the Greens will again stand up for the rights of local communities and residents to determine their own future in the face of yet another pro-developer government,” Mr Shoebridge said.

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