This article explores the introduction, importance, and practical application of planning principles in the Land and Environment Court

What is a “Planning Principle”?

A Planning Principle is a general assumption or belief forming the basis of a chain of reasoning used in the Land and Environment Court. Planning principles are designed to apply to frequently arising situations, assisting Commissioners of the Land and Environment Court in making consistent and transparent decisions. The introduction of these principles over 20 years ago marked a significant step toward greater clarity in the Court’s judgments, making it easier for parties to understand and predict outcomes.

Why are Planning Principles important?

Planning Principles are crucial because they provide a structured framework for decision-making, ensuring that similar cases are decided consistently. This consistency enhances fairness and transparency in the planning process. By clearly stating the reasoning behind decisions, Planning Principles help demystify the legal process, making it more accessible to both practitioners and the public. They reduce the likelihood of arbitrary decisions and foster trust in the planning system.

Since the introduction of planning principles by the Land and Environment Court, it has become common to see these principles adopted in the assessment reports and reasoning of local councils. This practice ensures that local council decisions are aligned with the established legal framework, promoting consistency and transparency in planning processes. By integrating these principles into their assessment reports, local councils can provide clear, structured reasoning for their decisions, which helps to justify their actions and make them more defensible if challenged. This alignment not only aids in maintaining uniformity across different cases but also enhances the credibility and predictability of planning outcomes.

Insights from Senior Commissioner Roseth’s 2005 Speech

In a speech from 2005 (accessible below), the former Senior Commissioner Roseth highlighted the transformative impact of Planning Principles on the Court’s decision-making process. He noted that prior to their formal introduction in 2003, planning principles were often implicit and not explicitly stated. The publication of judgments online, along with the inclusion of planning principles, marked a move towards greater transparency.

A clear definition was helpfully provided in the speech: “A Planning Principle… applies to a situation that arises frequently and can be applied to assist in reaching a decision in a particular case.” This definition underscores the role of Planning Principles in providing a consistent approach to recurring issues in planning disputes.

One example discussed in the speech was the assessment of view impact, a common issue in appeals. The principle established in Tenacity Consulting v Warringah [2004] NSWLEC 140 outlines a structured four-step process for assessing whether a view impact is reasonable. This process includes evaluating the types of views affected, the reasonableness of expecting to retain those views, the extent of the impact, and the reasonableness of the proposal causing the impact. You can read more about that Planning Principle by clicking here. The speech emphasised that explicitly stating these criteria in judgments makes the decision clearer for those affected and ensures future decisions on similar issues are consistent.

Future Directions and Developments of Planning Principles

As planning legislation continues to proliferate, the development and application of Planning Principles face both opportunities and challenges. The future direction of Planning Principles will likely be influenced by evolving legal frameworks, emerging urban and environmental issues, and the need for greater precision and adaptability in planning decisions.

The current housing crisis in New South Wales presents a unique opportunity for the development of new planning principles and the refinement of existing ones. As the demand for housing increases, particularly for affordable and sustainable options, planning principles can provide much-needed certainty in the application of merit considerations.

Further reading

You can read the full speech of the former Senior Commissioner Roseth below.