Assessing what an “improved planning outcome” means

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A review is underway of clause 4.6 of the Standard Instrument LEP document.

This is the clause that gives Council power to approve developments which do not comply with the statutory provisions of the LEP, a provision frequently invoked in a way that causes considerable community concern.

At the present time, the clause permits Council to depart from statutory LEP standards by up to 10 per cent, if the development is still able to “achieve the underlying purpose of the standard”.

There is no definition of what this means in practice, and developers routinely assert that a proposed development meets this criterion, without providing any specific supporting evidence and usually with no more than a few boilerplate platitudes from a computer template.

The proposal is that the provision be changed to require an applicant to demonstrate that contravention of the statutory standard “will result in an improved planning outcome” over what would be achieved by adhering to the standard.

On the face of it, this sounds like a significant step forward, but the question is what will it mean in reality?

It is just as easy for a developer to say that a project will improve the planning outcome as it is to say that a project will meet the goals of the LEP, and, without specific guidelines, the results will be exactly the same as they are now.

Who is to say what an “improvement” is, particularly when compliant projects often produce undesirable community outcomes?

The first requirement of any change should be that all property owners within the zone of affection of a project should be directly informed of the proposal and of the grounds on which the claim of “improvement” is made.

Secondly, there should be measurable criteria against which affected parties can formulate objections to a project.

Thirdly, Council, if it approves a project over objections, should be required (i) to publish and (ii) to directly inform affected parties of the basis on which it has concluded that the project improves LEP outcomes, using the same criteria as those for objections.

At least, the community could not then say that its concerns have been ignored, and it is not beyond possibility that legislation could be changed to allow a public-interest challenge in court on the basis of the approval record.

This is not to say that community objection should override all other considerations.

Parochial self-interest cannot be allowed to obstruct developments that represent a genuine improvement to the city as a whole.

However, the system is now heavily weighted against the voice of those who oppose non-conforming developments, and it is time that the balance was righted.

Anyone who is concerned about the way non-complying developments are now handled and who feels that the proposed change will achieve little, if anything, should make a submission to the Minister, demanding a more robust and transparent process than is now in place or than is proposed.

The Minister, himself, admits that the present provision introduces the possibility of corruption, so let us be sure that any change closes the door, as effectively as possible, against this suggestion.

Email, Apr 20
Bruce Hyland, Woy Woy

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