Standard deviation? The problematic pre-condition to SEPP 1

Abstract

Flexibility is brought into the New South Wales environmental planning system by a State department policy called State Environmental Planning Policy No 1 – Development Standards. It provides a mechanism whereby applicants for development can submit an objection to compliance with a development standard that would apply to the particular development. This may sound simple enough but it has become very complex and problematic – and has consequently led to much confusion. This article addresses the way that the courts have handled the question of identifying a development standard as the precondition to the discretion to relax compliance. The article firstly notes that the problem of identification is due to insufficient legislative guidance. Next, the different approaches to the matter that have been developed in the New South Wales Court of Appeal are set out. It is then noted that these different approaches have led to more difficulties in the Land and Environment Court. An alternative approach is then offered.