Questions we Can Help you to Answer
Paper Instructions:
As a guide only, your written report/essay must be succinct and persuasive.
Read the materials provided.
Question: Development Standards and other standards
Orientation
Most local government areas are now subject to Local Environmental Plans (LEPs) based on the Standard LEP.
Clause 4.6 of those LEPs allows consent authorities to approve developments which do not comply with certain development standards if the criteria set out in the clause are met.
State Environmental Plan No 1 (SEPP1) previously applied to developments under LEPs that previously applied in those areas. Clause 4.6 may be seen as having replaced SEPP1. SEPP1 still applies in some circumstances.
Development Control Plans (DCPs) also contain standards which may be departed from in some circumstances.
Departures from development standards in EPIs and from standards in DCPs have sometimes been controversial. There are those who contend that planning controls should be certain and only altered (if at all) by way of amendment of the applicable LEP. Others contend that planning controls must embody flexibility to allow meritorious developments to be carried out with the minimum of red-tape.
Your task
Your task is to prepare a paper setting out how the courts have interpreted and applied SEPP1 and clause 4.6 and provide a commentary on how the standard Instrument LEPs have addressed the problems which beset the operation of SEPP1.
As part of your paper:
• give an overview of how and in what circumstances SEPP 1/clause 4.6 operates (as gleaned from the legislative provisions and decisions of the courts);
• chose a decision of a Commissioner of the Land and Environment Court where the Commissioner applied clause 4.6 and relate the reasoning process undertaken by the Commissioner;
Start your research by reading:
• relevant provisions in the Environmental Planning and Assessment Act 1979;
• SEPP 1;
• Clause 4.6 from three LEPs of your choice;
• Whitehouse Chapters 29 and 30.
You should also go to:
• the Land and Environment Court web page;
• New South Wales caselaw
• the Department of Planning web page;
• ICAC web page;
• wherever else your enquiring minds take you.
