How far can you go

It is interesting sometimes to observe the community perception that all development proposals must comply with every aspect of the planning scheme. In reality, most development proposals have some minor aspect that requires dispensation or relaxation by the Council as the assessment manager.


Getting the most out of a development site

It is the nature of the market for investors and developer to achieve as much as possible on a development site if it maximises profit. Inherently, a developer seeks the best return on a site. That means 'pushing the boundaries'. It requires extracting as much as reasonably possible from a property while respecting neighbourhood amenity and avoiding other adverse impacts. It often means not complying with every acceptable outcome, but instead looking to comply with intentions as expressed in performance outcomes, overall outcomes, or even strategic-level outcomes.

Sometimes a proposal conflicts with some aspect of a planning scheme yet still represent a reasonable project with acceptable impacts.


Sufficient grounds test

Sometimes pushing the boundaries requires that Council determine that there are 'sufficient planning grounds to approve a proposal despite a conflict' between the proposal and the planning scheme.
Conflict with a planning scheme is different to  merely not complying with some acceptable outcome or performance outcomes in a code that might occur when a proposed building is setback less than a minimum or when there are fewer cars than specified. It is more to do with a proposal being markedly different to that expected by the planning scheme, for example industrial development in the middle of a residential street. While this might be an extreme case it illustrates that conflict is more to do with breaching intent than mere non-compliance.
The Sustainable Planning Act 2009, enables a Council decision to conflict with the planning scheme in certain circumstances. The 'sufficient grounds test' is generally treated in this way—

  1. is there a conflict with the scheme or policies;
  2. if so, how serious is the conflict; and,
  3. finally, are there sufficient grounds despite the conflict?

This effectively means that Council could approve an industrial project in a residential zone provided there were 'sufficient grounds'. There would ordinarily not be sufficient grounds if the planning scheme was a contemporary representation of land uses and future intent. That, however, does not mean that a proposal that conflicts with the scheme requires a refusal.



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