The exercise of discretion

There are many factors that decision making authorities are required to take into account when determining an application for planning approval. Typically, those considerations are set out in the relevant planning framework.

In certain circumstances, those frameworks set the thresholds or limits for development occurring in a particular zone with the specific aim of protecting/preserving amenity or guiding future development in a particular manner.

Whilst it is commonly the case that developers will only seek to apply for development in accordance with those defined thresholds, there remains many circumstances where variations are required to either make a development viable, or to account for particular site constraints. This is particularly so in the case of local planning schemes that are outdated or fail to take into account the needs or demands for higher density development in well serviced localities.

As a consequence, it is always prudent, particularly in cases of infill development, to review the relevant local planning framework in order to determine whether any exclusions or variations to thresholds and/or standards may be relevant to your development. 

One case in point is the inherent discretion available when applying the multiple dwelling standards set out in the R Codes, in particular:

  • Clause 6.1.1 of the R Codes deals with building size of multiple dwellings in areas coded R30 or greater. 
  • Clause 6.1.1C of the R Codes provides that development satisfies the “deemed to comply” requirements of the R Codes if development complies with the maximum plot ratio set out in Table 4. 
  • Table 4 of the R Codes provides sets out the maximum plot ratio for a particular coding (for example, R60 is limited to 0.7)
  • In circumstances that a proposed development exceeds the maximum plot ratio set out in Table 4, it is open for an applicant to apply for, and a decision maker to assess the application against, the “Design Principles” set out in clause 6.1.1 P1 of the R Codes.
  • Relevantly, clause 6.1.1 P1 of the R Codes provides that an application may be permitted where it can be demonstrate that:

“Development of the building is at a bulk in scale indicated in the “local planning framework” and is consistent with the existing or future desired built form of the locality”.

  • The term “local planning framework” is a defined term in the R Codes and means:

“Comprises all strategic, statutory and policy planning documents which collectively outline the planning for an area and development requirements for sites, of the decision maker and generally include a scheme, local planning strategy (including any housing component), local structure plans, activity centre plans and local planning policies”.

What that means is that in situations where structure plans, detailed area plans, or local planning strategies (draft or finalised) contemplate a built form outcome which is different from the threshold/limit imposed by the current R-coding, the exercise of discretion should be given serious consideration.

In addition to the general consideration of discretion under the planning framework, many local planning schemes have generic provisions which give Councils the discretion to vary certain standards or requirements specified in the scheme (including plot ratio and building height in some cases).

The criteria for consideration of the grant of a variation often includes matters such as:

  • the applicant demonstrating exceptional levels of design and efficiency;
  • whether the proposal will detrimentally affect the amenity of a locality or impact on adjacent sites;
  • consideration of the underlying objectives of a particular zone; and
  • whether the proposal may compromise the contemplated future development of the locality.

What this means is that the potential exists to meet state planning policy objectives to increase density in appropriate locations, improve housing affordibility and decreasing congestion in the urban fringe can be adhered with sensible design.

In summary, serious consideration should be given to the question of whether standards and thresholds currently set out in the planning framework can be varied or exceeded, as the return on investment may be considerable.

If you have a project or proposal currently limited by height/plot ratio and you think there may be, or your are unsure of whether an opportunity exists to consider a variation of that threshold, we would invite you to contact any of the Lavan Legal Planning and Environment team to discuss your project.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.