Planning law and principles

A planning principle is a statement of a desirable outcome from a chain of reasoning aimed at reaching, or a list of appropriate matters to be considered in making, a planning decision.

While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils’ plans and policies.

Planning principles assist when making a planning decision, including:

  • where there is a void in policy
  • where policies expressed in qualitative terms allow for more than one interpretation
  • where policies lack clarity.

Adaptive re-use

Adaptive re-use and public interest

Michael Hesse v Parramatta City Council [2003] NSWLEC 313 at 14-18; revised – 24/11/2003

Aesthetics

Weight to be given to expert opinion on architectural design

Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78 at 38-42

Brothels

Location of brothels

Martyn v Hornsby Shire Council [2004] NSWLEC 614 at 18-21

Building envelope

Tensions between a prescribed floor space ratio and a prescribed building envelope

PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 at 48

Compliance

Responsibility for monitoring compliance with a condition

Dayho v Rockdale City Council [2004] NSWLEC 184 at 7-8

DCPs and Council policies

Weight to be given to Development Control Plans and to policies which had been adopted by councils although not embodied in DCPs

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at 86-88 and 89-93; revised – 01/10/2004

Demolition

The extent of demolition – alterations and additions or a new building

Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187

ESD and the precautionary principle

Explication of the precautionary principle and framework for its implementation

Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 at 107-183

ESD principles

What regard should a consent authority give to the principles of ecologically sustainable development

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at 82-114; revised – 05/05/2005

Floor space ration (FSR)

FSR – Compatibility in a suburban context

Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366 at 23-28

General impact

Impact on neighbouring properties – revised principle

Davies v Penrith City Council [2013] NSWLEC 1141 at [116] to [121]

General impact

Reasonableness of and necessity for proposal

Super Studio v Waverley Council [2004] NSWLEC 91 at 5-7

Height, bulk and scale

Assessment of height, bulk and scale

Veloshin v Randwick Council [2007] NSWLEC 428 at 32-33

Heritage

Demolition of contributory item in conservation area

Helou v Strathfield Municipal Council [2006] NSWLEC 66 at 43-46

Heritage

Impact of adjacent development

Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 at 34

Landscaping

Imposition of conditions relating to the preservation of landscaping or protection of existing vegetation.

Falcomata v Ku-ring-gai Council (No 2) [2005] NSWLEC 459 at 53

Licensed premises

Extension of trading hours increase in permitted patron numbers or additional attractions

Vinson v Randwick Council [2005] NSWLEC 142 at 84-85

Master plans

Proposal permissible but inconsistent with Master Plan

Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253 at 40-43

Noise

Attenuation measures

Stockland Developments v Wollongong Council and others [2004] NSWLEC 470 at 6

Non-statutory regional planning policies

Assessing the role of non-statutory regional planning policies vis-à-vis statutory local plans

Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 at 25-26

Open space

Location of communal open space

Seaside Property v Wyong Shire Council [2004] NSWLEC 600 at 30

Plan of management

Adequacy or appropriateness of a plan of management to the particular use and situation

Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 at 53-55

Privacy

General principles

Meriton v Sydney City Council [2004] NSWLEC 313 at 45-46

Privacy

Use of landscaping to protect privacy

Super Studio v Waverley Council [2004] NSWLEC 91 at 5-7

Redevelopment

Isolation of site by redevelopment of adjacent site(s) – general

Melissa Grech v Auburn Council [2004] NSWLEC 40 at 51

Redevelopment

Isolation of site by redevelopment of adjacent site(s) – where intensification of development is anticipated

Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 at 31-34

Redevelopment

Isolation of site by redevelopment of adjacent site(s) – role of Court in assessing consolidation negotiations

Karavellas v Sutherland Shire Council [2004] NSWLEC 251 at 17-19

Redevelopment

Existing use rights and merit assessment

The principles to be considered when undertaking a merits assessment of a proposed redevelopment of a site with existing use rights were dealt with by Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71.

In Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 the planning principles in Fodor were considered and confirmed by Pain J at pars 83-89.

Principle 2 was specifically supported in paragraph 87 and principles 1,3 and 4 were specifically supported in paragraph 89.

Her Honour states, in para 89, that care must be exercised in the application of the principles to ensure that there is not a de facto application of standards in environmental planning instruments as that is prohibited by s 108(3) of the Environmental Planning and Assessment Act.

Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 at 83-84

Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 at 17

Seniors living

Seniors living in low density zone

GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 at 14-18

Setbacks

Building to the side boundary in residential areas

Galea v Marrickville Council [2005] NSWLEC 113 at 17

Site dimensions

Small or narrow sites

CSA Architects v Randwick City Council [2004] NSWLEC 179 at 15-17

Staged development

How much information should be provided at Stage 1

Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 at 58-59

Subdivision

When a residential subdivision application should impose constraints on future development

Parrott v Kiama Council [2004] NSWLEC 77 revised – 16/03/2004 at 17

Subdivision

Solar access for allotments in residential sudivisions

Wallis & Moore Pty Limited v Sutherland Shire Council [2006] NSWLEC 713 at 74

Sunlight

Access to sunlight

The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at 133-144

Surrounding development

Compatibility of proposal with surrounding development

Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 at 22-31

Unusual contemporary design

Basis for assessment

Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712 at 41-44

Use

Impact of intensification

Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 at 25-26

Views

Views – general principles

Tenacity Consulting v Warringah Council [2004] NSWLEC 140 at 25-29

Views

Impact on public domain views

Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [[2013] NSWLEC 1046 at 39 – 49

Zones

Weight to be given to the zoning

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 revised – 05/05/2005 at 115-119

Zones

Development at zone interface

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at 25

Source: Land and Environment Court

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