Planning Rules are not Rock Solid

I just spent a couple of hours reading some thrilling court cases about planning regulations, and here's what I learned: planning rules are not as rock solid as you might think...

House on a hill

These cases in NSW involved a new house on a long narrow block that slopes steeply down to a river. The owner (through Gemaveld, a company) wanted to knock down their existing house and build a bigger one, but Georges River Council initially refused the application.

First appeal

The owner eventually appealed this decision to the NSW Land and Environment Court. After a few months of wrangling, the owner and Council came to agreement about how the project could be approved. It is not clear what the points of dispute or their resolutions were.

The LEC, as it was required by law to do, gave its consent to the application since there was no longer a dispute. The LEC noted for the record the ways in which the proposed new house complied with the local plan's rules, including maximum building height.

Second appeal

Then - plot twist - the neighbours (led by El Khouri) sued in the NSW Supreme Court, saying the proposed house was actually exceeding the maximum height at one spot on the property.

What initially appeared to be a compliant building height was actually too tall at one spot where the house stuck out over a 1-2m rock ledge drop-off. This fact was supported by evidence from a surveyor. The original plans approved by the LEC did not definitely show this terrain feature or the noncompliant building height. (Interestingly the original architect was not called into the court cases.)

Despite this, the Supreme Court ruled that the LEC had made an appropriate decision to grant consent on the basis of the available information at the time, so the development consent could not be undone and no remedy was available to the neighbours.

Third appeal

The neighbours were not happy with this and appealed AGAIN to the Court of Appeals, saying that the consent had to be undone because the LEC had no legal basis to give consent to a building that violated a rule. So now the Court of Appeals had to reach a conclusion about how "hard and fast" the planning rules actually are. Would it be possible for a court appeal to undo a granted consent due to later-discovered errors?

The wording of the building height rule in question, from the local plan, is:

"The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map".

And the wording of the relevant law for how development assessment must be done is:

"In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
  (a) the provisions of—
    (i) any environmental planning instrument, and ..."

Because the plain wording says that the consent authority, being the LEC in this case, must only "take into consideration" the provisions of the local plan, the Court of Appeals concluded the regulations in the instrument have no independent legal force so long as they were "considered".

Even though the LEC made an error of fact about the building exceeding the height limit, the mere "consideration" of the height rule, via explicit mention in the LEC decision, was enough to make the consent valid and not eligible for judicial appeal. On first glance this might set a new standard to establish the validity of consents that failed in fact to comply with the rules. (This is assuming no legitimate consent was granted for a rule violation via what is called "Clause 4.6".)

Still unsettled

However, what none of the courts specifically commented on is the exact phrasing of the height rule. The words "is not to exceed" may possibly be more legally flexible than other words used in other rules. It's hard to imagine reaching the same conclusion about a consent being valid if it violated a rule that said "consent must not be granted if/unless ...".

The courts also may not have fully examined the law that says a development that needs consent must be "carried out in accordance with the consent and the instrument" being the local or state plan that provides permissibility for the consent.

I anticipate a future court case will test one or both of these open questions. Regardless, it's important when looking at planning regulations to have a good understanding of the legal context that they are written and empowered from. Rules are often not as hard and fast as you might think!

P.S. nothing in this article should be taken as legal advice!