The future of planning principles

1. The future of planning principles Acting Justice Tim Moore Land and Environment Court EPLA Seminar 29 July 2015

2. Genesis The first planning principle was published by Dr John Roseth, the then Senior Commissioner, in 2003 in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268. This decision set out four broad principles concerning seniors living developments in low density zones

3. Rate of accrual since 2003 Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046 was the vehicle for the most recent new PP

4. Spreading the word • As I have observed in the past, Tenacity Consulting v Waringah[2004] NSWLEC 140 is by far and away the most frequently cited planning principle (it has been incorporated in a number of DCPs). • On a wider front, it has been adopted and followed in decisions by: • Queensland Body Corporate and Community Management Commissioner • Queensland Civil and Administrative Tribunal • State Administrative Tribunal of Western Australia • Supreme Court of South Australia • Victorian Civil and Administrative Tribunal • Others of the LEC’s planning principles have been applied in interstate planning jurisdictions.

5. What they are • 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.

6. The Court of Appeal In Segal & anor v Waverley Council [2005] NSWCA 310 (2005) 64 NSWLR 177, the Court of Appeal endorsed the utility of planning principles , saying “…. consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court ….” (per Tobias JA at [96]; Beazley and Basten JJA agreeing)

7. What they are not - 01 • First, planning principles are not immutable. • Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277) led to an expanded principle in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27.

8. What they are not - 02 Second, planning principles are not intended to be exhaustive. Whilst Commissioners are, necessarily, wise (as well as good looking) it is admitted (with some reluctance) that wisdom is shared by others and principles need to be considered in their context!

9. What they are not - 03 Third, planning principles are not binding Tobias JA also made it clear in Segal that planning principles do not bind Commissioners but provide assistance in consistency of decision making. Each case must be decided on its own facts and circumstances (at [99]). Self evidently, this applies to any other use of a planning principle.

10. What they are not - 04 Fourth, planning principles are not statutory instruments and are not to be parsed as if they are. “Fine tooth comb” legalistic interpretation (as discussed by the Court of Appeal in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368) is to be avoided.

11. What they are not - 05 Finally, they speak for themselves. As I observed in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126 at [61], “Planning principles are not statements replete with hidden meaning or calculated ambiguity”

12. Types of planning principles • Prescriptive planning principles • Telling enquirers what the answer is • Process planning principles • Telling enquirers what questions to ask themselves to work out the answer

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14. The High Court in Lange This Court is not bound by its previous decisions. Nor has it laid down any particular rule or rules or set of factors for re-opening the correctness of its decisions. Nevertheless, the Court should reconsider a previous decision only with great caution and for strong reasons. Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818

15. The trigger for the review The Planning Principle in Parsonage …… For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight .……..

16. The consequences of prescription 01

17. The consequences of prescription 02

18. The outcome Parsonage v Ku-ring-gai [2004] NSWLEC 347 was replaced by a revised planning principle published in The Benevolent Society v Waverley Council [2010] NSWLEC 1082. The new principle was written as a process based one rather than as a prescriptive one.

19. 2013 EPLA presentation • There are, in my assessment, three new approaches to planning principles that should be added to and provide supplementation for the existing traditional approach to identification of opportunities for and development of such principles by Commissioners of the Court. Those three opportunities are: • Revision of existing process-based planning principles; • Reconsideration (and possible replacement) of the existing prescriptive elements in existing principles; and • Early identification of topics for new planning principles.

20. Dealing with the prescriptive • Two have been dealt with: • Parsonagehas been replaced; and • Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1 (prescriptive approach to determining classification of development as “additions or alterations” was replaced by a process based principle through Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187

21. Revelop Projects Pty Limited v Parramatta City Council • It is appropriate at this point to note, as I have publicly foreshadowed would occur in a paper given to the 2013 annual conference of the Environmental Planning Law Association, that the Commissioners of the Court were undertaking a review of past planning principles and considering whether there were any that required either revision or removal on the basis that their utility had expired. • That review has been undertaken by Commissioners of the Court and we have considered the planning principle set out by my predecessor in Project Venture Developments. I should indicate that we have expressly concluded that that planning principle remains relevant and should be retained.

22. Progress to date • Anglican Church Property Trust v Sydney City Council was set aside for the future in Comino v Council of the City of Sydney (O’Neill C) • Pafburn v North Sydney Council was revised in Davies v Penrith City Council (Moore SC) • Project Venture Developments v Pittwater was confirmed in Revelop Projects Pty Limited v Parramatta City Council (Moore SC) • Randall Pty Ltd v Leichhardt Council and Vinson v Randwick Council were confirmed in The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council (Moore SC) • Renaldo Plus 3 Pty Ltd v Hurstville City Council was modified in Amazonia Hotels Pty Ltd v Council of the City of Sydney (Pearson C) • Tenacity Consulting v Warringah was confirmed in Stamford Property Services Pty Limited v Council of the City of Sydney (Moore SC) • Veloshin v Randwick Council was confirmed in Doolan v Strathfield Municipal Councilwhilst Seaside Property Developments Pty Ltd v Wyong Shire Council was confirmed to the extent that it applied to the zone boundary interface but not as to the comments on the location of private open space (Brown C)

23. Possible new areas flagged in 2013 • How to consider impacts on socioeconomically disadvantaged communities by the possible introduction of a new alcohol outlet • How to respond to the impact of antisocial behaviour on occupants of residences near activity venues (not merely licensed premises) • Is it desirable to extend and/or expand on Helou v Strathfield Municipal Council for application to local heritage items rather than merely contributory items in a conservation area?

24. Conclusion 01 Although I have discussed a process that will continue to be undertaken within the Court, primarily by the Commissioners, there is available to the regular practitioners (legal and expert witness) to play a constructive role in the evolution of the planning principle process.

25. Conclusion 02 The invitation I issued in 2013 remains open – any suggestions for other topics or, in any proceeding, suggestions on revision (whether by expansion, contraction, reformulation or abandonment) will be welcomed for consideration. Engaged practitioners doing so may not only contribute to the planning jurisprudence of NSW but has the potential to be of wider national influence.