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Essence of Planning Principles in Court Procedures: Analytical Essay
Planning principles
Planning Principles has been defined by the Land and Environment Court as “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”. The principle in this planning principle has been derived from Latin word Principium which means beginning, origin or source which has been generally assumed by Dr. John Roseth as the basis for forming the chain of reasoning. He has further mentioned that the planning principle applies to a situation that arises frequently and can be applied to assist in reaching a decision in a particular case. (SC Roseth, Feb 2005) Further, the website of Woollahra Municipal Council has taken Planning Principles as a set of guiding considerations that are arose from the judgements taken from the Land and Environment Court.
Planning principles are not legally binding and they do not overcome over councils’ plans and policies. They are applied to certain cases to promote consistency as doing so can be more beneficial in long term. The LEC website states that the planning principles are applied while making certain planning decisions that includes decisions having void in policy, the policies expressed in qualitative terms allowing for more than one interpretation and in cases where policies lack clarity.
There are five themes according to SC Roseth which advises and are predominant in the planning principles. The first theme is that there is more to impact assessment than quantitative criteria like development standards being applied and then ticking off each problem based on whether they meet the requirements or not. The second theme is about the equal importance of change in impact as that of the magnitude of impact. The third one explains how balancing the magnitude of impact with the necessity and reasonableness of the proposal is important while assessing the impact. The fourth one tells about the level of design skill that has been applied to a proposal as it is also a major factor of assessments of its impacts. In such cases small impacts due to poor design are also not accepted. The fifth theme says that the impact that has been risen from a proposal not complying with planning controls is much difficult to justify than the one that has risen from a complying proposal because the people especially the neighbors who are affected by the impact of development has the expectation that it would fulfill the planning requirements. Along with this it is also necessary to be aware that the impacts also depends on the time and place. The impacts that are not acceptable now in a particular place can be acceptable in future and in different place. (SC Roseth, July 2005)
In the paper “The relevance of the Court’s Planning Principles to the DA process”, SC Moore has discussed about the development of the planning principles in appeals under ss96 and 97 of the EPA act 1979 which are the merit review proceedings to class 1 of the Court’s jurisdiction. (SC Moore, May 2009). Moore has described that planning principles are developed through the court dealing with an abstract issue rather than the merits of a particular case which is achieved through a collegiate process in the presence of the commissioners of the court and also the judges of the court at certain time to time. In this many discussions are carried out amongst the commissioners whether or not the planning principle is desirable in the identified topic. From this process a consensus is emerged initially before principles are published. And in conclusion, the judgement not only deals with the merits of the case but also sets the principle that has emerged from the consultation. The principles are designed so as to provide guidance on the particular topic as a response to collective views of the commissioners. (SC Moore, Oct 2013) The principles totally depends on the commissioner who determines the matter and the refusal is based in the fact that the principle does not cause any difficulties for a subsequent decision maker dealing with the same site.
The court has till date published more than planning principles and they all seem to fall under one or two categories. The first one being the descriptive and prescriptive category which is outcome oriented and the second one process oriented category. The first prescriptive planning principles is not based on undertaking an assessment process but is based on the outcome that is to be derived from the assessment process. (SC Moore, Oct 2013) The court ends up the case by describing the possible result, when a planning instrument intends that an undefined performance standards must be attained. For example, planning principle dealing with the access of sunlight. (SC Moore, May 2009) The second process oriented planning principles is based on how a person should carry out the proposal assessment for considering a particular issue covered by the principle. This does not speak about the outcome of the assessment. (SC Moore, Oct 2013) In this the steps to be taken in merit assessment is described which provides the necessary guidance in decision making. It also speaks about considering issues with no detailed approach in relevant planning instrument. For example, planning principles dealing with issues of views or view sharing. (SC Moore, May 2009).
To explain more about the process oriented planning principle which is broad and facultative of the assessment process, let’s consider three land and environment court cases that would explain about the process involved in the proposal assessment.
1. Tenacity Consulting v Warringah Council (2004) NSWLEC 140 at 25-29 dealing with the impacts on views.
The tenacity case includes four steps for the assessment process and suggested aspects considering each steps. This intend to describe whether a view impact is reasonable or not. While doing so the first step was the assessment of views affected by the proposal which in turn established a valued system of assessing different views on the basis of nature and their value like water view, land view, iconic views, whole view, and partial view. The second step was considering the reasonableness of the views to be retained like protection of views at side boundaries are difficult than that of front and rear, the position in which the view is enjoyed. The third step was the assessment of the extent of the impacts which had to be done for the property as a whole and not only for the view affected. In this the impacts are considered based on the rooms from where the views are being observed such as view from living and bedrooms have more value than that from kitchen. The fourth step was the assessment of the reasonableness of the proposal that has caused the impact. In this the development complying with all the planning controls are considered over the one than does not comply. In this the design is also taken into considerations to check if any possible design can solve the issue. While completing all these steps, the last principle also considers if the objectors are reluctant to accept.(SC Roseth, Feb 2005)
In this was following the four steps the assessment of the proposal is carried out and the outcome is based on the answers of each steps. In this case the result is dismissed and did not have any specific outcome so the principle that was used to follow is the process-oriented.
2. Super Studio v Waverly Council (2004) NSWLEC 91 at 5-7 dealing with the use of landscaping to protect privacy.
In this case, three planning principles were considered. The first was the acceptability of the impact depending on the extent as well as reasonableness, necessity of the impact, and the development causing it. This holds the matter of privacy for example, privacy impact can be acceptable if it was a window but a balcony cannot be accepted. The second was to give minor importance if the proposed landscaping act as a main safeguard against overlooking. The use of landscaping as a privacy screen cannot always be justified. The third principle was to relate the outcome of the proposal approval to other applications with similar cases but with different aspects. (Caselaw 2004)
In this case not all but certain part of the proposal was allowed but the assessment had three steps followed for the process and there was no any specific descriptive or perspective outcome due to which this has followed process-oriented planning principle.
3. Veloshin v Randwick Council (2007) NSWLEC 428 at 32-22 dealing with the assessment of height, bulk, and scale.
In this case, the first thing that was assessed following the process was the appropriateness of the proposal’s height, bulk, and scale in relation to the planning controls of the area. The impacts of the attributes are assessed and checked if they can be reasonably expected under the planning controls. The second thing assessed was if the proposal preserve the existing character of the area and is fit to be in the area. The other thing considered was the desirability of new character that can be intended by the planning controls. While doing so, if there is no planning controls with regards to bulk and character, then the assessment should be carried out based on the preservation of existing character or development of new one. These questions’ answers acts as steps to consider for the planning process and is process-oriented planning principle as there cannot be any specific outcome.
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