New Law On SEPP 1 Objections – When Is Non-Compliance With A Development Standard OK?

The ability to apply for an exemption from a particular development standard (under SEPP 1) is often very important to the viability of many developments and is highly valued by most developers. The drafting of the objection by architects, planners, or developers themselves, will significantly influence whether the SEPP 1 objection can be upheld.

Knowing how to correctly frame an objection, and understanding the types of exemptions that are likely to be granted can greatly influence the constraints and development potential of a particular site.

A recent decision,Wehbe v Pittwater Council [2007] NSW LEC 827, has shed light on the test for the assessment of a SEPP 1 objection. The long-standing 5 part test was set out in Winten Property v North Sydney (2001) 130 LGERA 79:

1. Is the planning control in question a development standard?
2. If so, what is the underlying object or purpose of the standard?
3. Is compliance with the standard consistent with the aims of the policy, and in particular, does compliance with the standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning & Assessment Act 1979?
4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (A related question is: would a development which complies with the standard be unreasonable or unnecessary?)
5. Is the objection well founded?

Chief Justice Preston in his reconsideration, set out a new 5 part test (see further below). He also rephrased the assessment process as follows:

1. The applicant must satisfy the consent authority that "the objection is well founded", and compliance with the development standard is unreasonable or unnecessary in the circumstances of the case;
2. The consent authority must be of the opinion that granting consent to the development application would be consistent with the policy's aim of providing flexibility in the application of planning controls where strict compliance with those controls would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning & Assessment Act 1979; and
3. It is also important to consider:

Preston CJ then expressed the view that there are 5 different ways in which an objection may be well founded and that approval of the objection may be consistent with the aims of the policy:

1. the objectives of the standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;
3. the underlying object of purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;
4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;
5. the zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.

Where the grounds of objection are of a general nature and would be applicable to many sites in the locality, approval of the objection may create an adverse planning precedent. Preston CJ noted that there is a public benefit in maintaining planning controls and a SEPP 1 objection should not be used in an attempt to effect general planning changes throughout the area.

Following this reconsideration, gadens lawyers recommend that SEPP 1 objections should demonstrate an awareness of, and response, to the matters set out in Preston CJ's decision. Advice on the details and application of the decision should be sought in appropriate circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.