Consideration of Development Control Plans – Stockland Development Pty Ltd v Manly Council

In a judgment handed down at the end of 2019, the Court reiterated the principles set down in Stockland Development Pty Ltd v Manly Council regarding the consideration of development control plans.

On 19 December 2019 the decision of Pirasta Pty Ltd v Parramatta City Council was handed down by the Land and Environment Court. This decision revisited the well-establised authority of Stockland Development Pty Ltd v Manly Council (Stockland). Stockland provided five principles to guide the correct approach to the consideration of development control plans (DCPs).

The five principles

The five principles in Stockland are as follows (with emphasis added):

Principle 1:A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.

Principle 2: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.

Principle 3: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.

Principle 4: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.

Principle 5:Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

Key take-aways

The Court referred to the Stockland case in twelve separate judgments in 2019. Accordingly, the principles in Stockland are appropriate for any decision-maker (including the Court and council officers) to consider when assessing the merits of a development application.

If you are unsure about the application of a DCP to your development, it may be best to speak to your local council, your town planner, or seek legal advice.

If you would like legal assistance, you can also contact Alyce Kliese directly by clicking here.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.