Public exhibition of draft LEPs and why close attention to the wording is required

Many of the NSW local Councils that merged in the last two years currently have or will shortly have their draft local environmental plans (LEPs) on public exhibition.

In reviewing the draft instruments it is important that the public give careful consideration to the wording used in the LEPs. Particularly those clauses that relate to objectives or requirements that must be satisfied before development consent is given.

On first glance many objectives read like motherhood statements that generally seem reasonable. But if particular words are used such as “maintain” rather than “minimise” it can make a big difference in whether development will be approved and in particular whether objections to development standards lodged under clause 4.6 of LEPs will be accepted.

To explain, I give two examples below of how a few words in a LEP were decisive in the refusal of development applications.

Jindabyne subdivision: “and”, “minimise”, “unacceptable” and impacts when viewed from a certain place

In Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115 the commissioner was deciding whether to grant development consent to a 21 lot subdivision in Jindabyne. The application did not seek approval for the construction of buildings but rather contemplated maximum future building envelopes for dwellings so that future homeowners could design their own homes.

The application relied on a site specific LEP clause that permitted ”development for the purposes of a subdivision and the erection of not more than 20 dwelling houses”. Council contended and the Court agreed that the “and” was conjunctive such that because the development did not seek approval for the dwellings that it could not rely on this clause.

The commissioner was also not satisfied that the development met the requirements of the LEP regarding visual impacts because the impacts had not been assessed from the lake and he noted the distinction between the use of the word “minimise” and no “unacceptable impacts”. He said:

[102] … In cl 7.6, the test is that the development will not have an unacceptable visual impact; in Schedule 1, the test is to minimise the visual impact – thus referring to a process (minimisation) and not an outcome. It could be that the maximum effort possible has been made to minimise the impact but the visual impact would still be high – nevertheless because the impact is being minimised, the consent authority could reach the required level of satisfaction even if the result is still unacceptable; but visual impact, even if not minimised could, in some circumstances, be considered acceptable.

[103] Clause 7.6 requires that the impact to be assessed is that on the scenic quality of the area. Scenic quality is not defined in the dictionary of the LEP; use of ‘area’ rather than ‘site’ perhaps indicates that the impact is to be considered in the context of both the site and its surrounds. The view is to be obtained from the lake or from a public place. On the site inspection we observed the site from a public place but not from the lake. The observations from the public place might be sufficient to form a basis for determining whether I was satisfied or not that there was not an unacceptable visual impact (cl 7.6(3)(a)) but we took no more than a brief overview. There were no height poles or other markers on the site which would have enabled identification of the location of future buildings. Schedule 1 cl 1(2)(b) requires that the view is to be from nearby residences and Lake Jindabyne. Taken literally we did not take a view that would allow a consent authority to achieve the necessary degree of satisfaction for purposes of applying Schedule 1. In practical terms being at or close to the lake level on the shore as against being on the lake would make at the most a negligible difference to visual perception of the site. However, I note that in cl 7.6(3)(b) the relevant view from the lake is to be taken from the lake at its full supply level. The draftsperson added a public place to cl 7.6(3)(a) but not to cl 7.6(3)(b) presumably for a reason. I assume that the absence of a reference to a view from a public place in Schedule 1 cl 1(2)(b) was deliberately intended.

The commissioner also refused the application on the grounds that the placement of future dwellings did not “minimise” the ecological impact given on one lot part of the proposed building foot print extended into an endangered community that was in good condition. The Court considered there was an absence of evidence of avoidance and minimisation and if the requirement of the LEP is to minimise ecological impacts a balancing of planning with ecological issues doesn’t necessarily come into play.

Rouse hill subdivision: “orderly and efficient” and “diversity”

In Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1405 a subdivision development application for 51 residential lots sized 250-450m2 on a 2 hectare portion of land near Tallawong station relied on a clause 4.6 objection to overcome a minimum lot size control of 2,000m2. The clause 4.6 objection failed because the Court was not satisfied that the proposed development met the objectives of the development standard being:

“to allow for a range of lot sizes that cater for a diversity of land uses and employment activities”

The commissioner concluded that because the lot sizes were consistent with the neighbouring lots the application did not add to diversity of lot sizes.

“to ensure orderly and efficient use of land”

The commissioner concluded that “orderly” is in part a reference to the delivery of planned outcomes established by planning controls and so to change them is not necessarily orderly and “efficient” does not mean maximisation.

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