Navigating planning systems

Paul Vergotis , 5 October 2014

Planning lawyer Paul Vergotis offers a set of tips to help manoeuvre an architectural project through planning systems from proposal to success.

As a planning lawyer who has practised in the NSW Land and Environment Court for many years, I often find that development proposals put together solely by architects can lead to unresolved issues during the assessment and determination process. Yet, a few simple strategies can help ensure that things go much more smoothly. I’ve worked with many fine architects and as a team we have achieved some great outcomes. Drawing on this experience, I offer the following advice for architects to help get their projects over the line. Although based in experience of the NSW process, much of the following advice can be extrapolated to other state jurisdictions.

1. The plans

Architectural plans vary across widely, from highly detailed to just sufficient. The level of detail provided in the plans is invariably driven by the brief and the client’s budget, however, all plans must nonetheless meet the minimum requirements set in the particular jurisdiction. In NSW this is set by the Land and Environment Court’s Practice Note – Class 1 Development Appeals. Schedule A of this Practice Note contains eight specific requirements. Architects should ensure that these are met in full. I often need to have plans amended to meet these requirements, and this can be costly and time consuming for the client’s court case. No doubt similar practices and procedures apply in other state jurisdictions. Architects should be aware of these in case their plans end up before a court or tribunal on appeal.

2. Statements and reports submitted with development proposals

The next area that some architects are insufficiently aware of is the content required for the statements and reports submitted with development proposals. These crucial documents must clearly set out the nature of the proposal and all the mandatory planning controls that the proposal will be evaluated against. I’ve seen many statements and reports with insufficient information to enable the development proposal to be properly assessed and determined. I have also seen statements and reports with incorrect information. If in doubt, don’t take on the job – have a town planner prepare these documents with your architectural input.

3. Using other experts

In addition to seeking town-planning assistance, architects may benefit from input from urban designers – I’ve seen many projects fail in court because of a lack of urban design input. Architects need to identify at an early stage of the project whether the proposal will have, or is likely to have, urban design implications against a masterplan or environmental planning instruments. Such planning instruments could include the NSW State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65), which calls up the Residential Flat Design Code. Architects need to form strong relationships with planners and urban designers so the complete package is achieved with development proposals.

4. Planning law precedents

Over the past decade the NSW Land and Environment Court’s commissioners have developed a body of ‘planning principles’ through a number of significant judgments. The sole purpose of these principles is to provide guidance and consistency in decision-making by the court in similar factual scenarios. Although these planning principles are not designed to be hard-and-fast rules, it is important that architects consider them before working up their initial concepts. Currently, about 40 principles are published on the court’s website, which appositely deal with bulk, height, scale, streetscape, boundary setbacks and visual impacts. I recommend architects familiarise themselves with these principles to help understand what the court is likely to think when confronted with plans. While NSW is guided by these principles, other state jurisdictions are also guided by previous decisions on particular planning issues which are published in various state-based jurisdictions such as VCAT (Victoria), SA ERD (Sth Australia) and PEC (Queensland).

5. Legal issues and interpretation

The interpretation of planning controls can present further issues. Architects, like all other professionals, must be able to quickly identify whether a proposed development does, or is likely to, contravene planning controls that have been the subject of legal debate and interpretation. I am surprised at the number of times a development application has been submitted for proposals that are impermissible or prohibited within a zone. In my experience, this happens largely because the professionals have not been able to properly characterise the ‘purpose’ of the development that fundamentally drives the proposal in the first instance.

It is wise for architects and other professionals to be receptive to having their proposals ‘legally tested’ when issues arise that suggest the development being contemplated may not be permitted. Common examples include proposals involving the expansion and intensification of ‘existing uses’, and the interpretation and characterisation of multi-unit dwellings. What seems a good idea at first sometimes turns out to be prohibited. This is where planning lawyers can add value to development proposals.

6. Litigation option

In a number of situations architects need to be able to offer their clients a ‘Plan B’ contingency. For example, in the event that everything goes pear-shaped with the council or consent authority, or when the waiting time to get an answer is starting to make the whole project unviable. There is no downside to commencing an action in the court for either a non-determination or a refusal. In fact, court action is one good way to have the project’s merits brought to a head.

In NSW, for example, an applicant has a right of appeal to the court 42 days after the development application has been lodged with the council. Similar rights of appeal apply in other states. Architects need to discuss with their clients the prospect of taking the proposal to the court or tribunal for determination rather than anxiously waiting in the council queue. Processes and procedures in the NSW Land and Environment Court have come a long way in the past 10 years and the cost of litigation isn’t as expensive as one might think. Development application appeals default straight to conciliation conferencing, which is an ideal way for architects, planners and the like to fully appreciate the council’s concerns in a conference setting. Conferencing also allows the parties to enter into agreements to have the matter disposed of – this means the commissioner hearing the matter must endorse the agreement and grant consent to the project. Conciliations are not unique to NSW and other state jurisdictions also provide for alternative dispute resolution.

Architects should give thought to this process when their development proposals comply with the planning controls. Naturally, if an agreement can’t be reached then the matter will revert to a contest hearing, but here again the costs involved don’t necessarily exceed the holding costs of land sitting idle for months on end waiting for a decision to be made by consent authorities. Architects often tell me “the client doesn’t want to go to court”. However, the quick timeframe to get an answer through court action suggests that architect and client should consider the litigation path.

7. Expert evidence

The final piece of advice I’d like to proffer relates to architects being prepared to give expert evidence in court. Architects must remember that they (and all other engaged professionals) are not advocates for their clients’ causes in court. Architects must be impartial and provide objective advice and assistance to the court when giving expert evidence.

Hence it is crucial that architects be fully aware of their duties and obligations to the court under the Uniform Civil Procedure Rules 2005 and the Expert Witness Code of Conduct. These two documents must be acknowledged and fully understood when preparing written evidence and giving oral evidence.

Summary

As a planning lawyer, there is nothing more pleasing than to see a client’s development project come to fruition. Sure, I make a living partly by going to court and arguing the merits of an architect’s hard work, but I would much prefer to work with architects and other professionals upfront at the concept stage to avoid having to go to court. Taking a team approach pays real dividends to identify and test a development proposal from the outset. While it sounds like common sense to take this approach, architects can often try to be all things to all people, which in the long run can be problematic.