Interpretation of and weight to RDCP
- There were points raised by Council which called on me to relate RDCP to the well-known statutory provisions at s 4.15(3A) of the EPA Act, which provides relevantly as follows:
(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority -
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
- First was the emphasis given in Council's evidence and submissions to certain provisions at the "explanation" to the Block Controls at Part 10 to this element of RDCP (Ex 2 p 438), which provide, relevantly, as follows:
"Alternative design solutions may be considered only where it can be suitably demonstrated that the proposal would result in an improved urban design, amenity and sustainability outcome and meets the identified desired future character for the block."
- I note that some exceptions were cited in regard to contributory buildings (in heritage terms) and in relation to "flexible zones", neither of which are relevant to the topic at hand (street wall height).
- While, by its language, this RDCP provision might be seen as indicating the seriousness of the point for those drafting the plan, it is in conflict with the provisions of s 4.15(3A)(b) of the EPA Act in that it raises a higher bar, in regard to alternative design solutions, than that required by statute and does not have any effect in my evaluation.
- Second was a more general point and concerns the emphasis to the extent of background research and community consultation involved in the development of the provisions applying to Kensington (and Kingsford) centre in RDCP, and the newness of the plan.
- Council also usefully referred to the recent findings of Tomasic v Port Stephens Council [2021] NSWLEC 56 (Tomasic) [34]-[36], where Preston CJ summarised the weight to be given to a development control plan. Reference was made to Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang) where findings included that in determining a development application, development control plans need to be taken into consideration, as a "fundamental element" in or a "focal point" of the decision-making process (Zhang [75], [77]). The finding that a "directly pertinent" development control plan provision was entitled to "significant weight" but "was not, of course, determinative" (Zhang [75]) was also referenced.
- Justice Preston, in the summary provided in Tomasic, also referenced the three factors relating to the weight to be applied to development control plans as found in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87]:
"- A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
- A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.
- A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies."
- Finally, Justice Preston highlighted the fact that "there may be alternative solutions to achieve the objects of development control plan provisions" (Tomasic [36]), while directly referencing the provision of s 4.15(3A) of the EPA Act (see [78]).
- So in terms of the evidence of background work, including community consultation associated with the preparation of RDCP, I note that mindful of Stockland's first factor, significantly more weight can be applied compared to a situation where the planned did not have such consultation, at least. It does not seem to me that the other two factors come into play in this instance given the relatively brief life of the relevant aspects of the plan to date (the Kensington and Kingsford Town Centre provisions to RDCP were made 20 November 2020 according to the parties). Beyond this case law, I again need to be very conscious of the provisions at s 4.15(3A) of the EPA Act, especially given that they were introduced subsequent to the findings of Stockland and Zhang.
- I will also mention here the point raised by the Applicant that RDCP is incorrect in its statement that "building envelopes have been determined by taking into account localised site characteristics (et al)" (Ex 2 p 423). I understood the Applicant's point to be that RDCP could not have done so given the street wall height's which had been adopted, which were often at odds with "localised site characteristics". It is quite valid to assume that RDCP did as it says, on this point, and was of the view that it sought to adopt different street wall heights, as a conscious departure from that which existed and, relevantly, the previous development control plan.