'Improved planning outcome' test may still be subjective
Norm Harris asks whether approvals of non-compliant developments create a precedent under which similar non-complying developments are deemed acceptable ("Precedents take over from planning provisions", PN 517).
In fact, SEPP1 says that this applies where "the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard", so, although SEPP1 has been rescinded, the principle seems to be in place.
What is important now is that the Minister is considering an amendment to clause 4.6 of the Standard LEP that would change the basis for approving a non-complying development, and it is crucial that any such change reflect best practice and protect community interests.
At present, the test for a non-complying development is that it "achieve the underlying purpose", even though it does not meet a specific standard in the LEP.
Of course, this is a completely subjective judgement, and there are no fixed criteria by which an application can be measured against the "underlying purpose".
It appears that most applications just make a platitudinous statement that the development meets the requirement (often, it seems, just boilerplate text from a computer template), and the outcome depends on the bargaining strength of the applicant.
Anecdotally, it appears that developers have little trouble in getting consents, where ordinary ratepayers can be refused requests for relatively trivial variations.
The minister is now proposing that clause 4.6 be changed to require that an application will bring about an "improved planning outcome", before it can be approved.
On face, this sounds like a significant strengthening of the provision, but, without specific guidelines as to what would constitute an "improvement", it is doubtful that it gets us much beyond where we now stand.
It is just as easy for a developer to say that a project will bring about an improvement as it is to say that it meets the underlying purpose, and whose opinion will prevail in this situation?
Given the record of the kinds of projects that have been approved in the past, who could have much confidence that the community's interests will be any better served by the change in wording?
Anyone who is concerned about the development standards being applied to projects on the Peninsula needs to let his views be known to the Minister, while the amendment is under consideration.
We need to ensure that any change incorporates protections against arbitrary decision-making of the kind we see to date and that transparent processes are built into the system, to satisfy the community that all factors have been taken into account in issuing an approval.
Silence gives consent, so failure to voice an opinion will allow the present wording to go through unreviewed.
SOURCE:
Email, 22 Apr 2021
Bruce Hyland, Woy Woy.