Greater Focus on Good Design

The role of good design in development in NSW was considered in a decision of the Land and Environment Court earlier this year. In Zammit v Inner West Council [2019] NSWLEC 1074 Commissioner Horton discussed how Better Placed, an overarching policy setting out the government's position on design, as well as the object for good design in the Environmental Planning and Assessment Act (NSW) 1979 (EP&A Act) can be used to steer design. In his decision, Commissioner Horton considered the emerging role of 'good design' in the context of an appeal against Council's deemed refusal of a development application for alterations and additions to an existing dwelling. The dwelling was located in a heritage conservation area pursuant to the relevant Local Environmental Plan. The Applicant relied on evidence of an urban designer to argue that the proposed development was an example of good design, and therefore it was consistent with the design object in s 1.3(g) of the EP&A Act, the objectives in Better Placed, and the objectives in Chapter A, Part 2 of the relevant development control plan.

Good Design Object

Section 1.3(g) was inserted into the objects of the EP&A Act in March 2018 together with a suite of other amendments. Section 1.3 of the EP&A Act now provides (emphasis added): The objects of this Act are as follows: ' ' ' ' ' ' ' ' ' ' ' ' '  '€¦ ' ' ' ' ' ' ' ' ' ' ' ' '  (g) to promote good design and amenity of the built environment. Section 4.15 (previous s 79C) of the EP&A Act provides relevant considerations for a consent authority when evaluating a development application. They are: (a) the provisions of'€”

• (i) any environmental planning instrument, and
• (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
• (iii) any development control plan, and
• (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
• (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
• (v)' '  (Repealed)

' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '  that apply to the land to which the development application relates While good design may have been a relevant consideration for consent authorities pursuant to s 4.15 of the EP&A Act, the inclusion of an object for good design in the EP&A Act, has elevated the role of good design in the planning system, as the objects of the EP&A Act guide the interpretation of the considerations in s. 4.15[1]. Accordingly, consent authorities should now promote good design and the amenity of the built environment in all planning decisions. But what is good design? Are there any benchmarks?

Better Placed

In late 2017, the NSW Government Architect released Better Placed, an integrated and overarching design policy that provides a set of principles and guidance to support productivity, liveability and sustainability through good design. Better Placed responds to concerns about impacts of poor design and recognises that good design adds value to a development. The policy establishes a baseline of what is expected to achieve good design across all projects in NSW, and that we should make the most of opportunities that will arise to incorporate good design in the development of new spaces and places. Better Placed provides seven key objectives in the design of the built environment. They are:

1. Better fit '€“ contextual, local and of its place
2. Better performance '€“ sustainable, adaptable and durable
3. Better for community '€“ inclusive, connected and diverse
4. Better for people '€“ safe, comfortable and liveable
5. Better working '€“ functional, efficient and fit for purpose
6. Better value '€“ creating and adding value
7. Better look and feel '€“ engaging, inviting and attractive

In addition to providing a benchmark for good design, Better Placed can also be used to guide specific projects where there is a gap in existing planning controls, for example in seniors housing and mixed-use developments. Better Placed is supported by a number of other design guides, manuals and case studies. At paragraph [50] of his decision, Commissioner Horton stated that Better Placed is: "'€¦ clearly intended by its publisher, the Department of Planning and Environment, to be an adjunct document that provides principles and guidance for parties delivering on object (g) of the EPA Act including, presumably, to consent authorities when exercising their function as a decision-maker in relation to development applications, pursuant to s 4.15 of the EPA Act." Further, at paragraph [50], Commissioner Horton acknowledged that: "'€¦ the value of Better Placed, and its associated design guides, manuals and case studies, lies in its potential to be a resource for those in the business of procuring design , or planning to undertake development."

How are developers affected?

The decision is important for developers as it demonstrates not only the elevation of good design in development in NSW, but crucially, how design quality is expected to be satisfied under the new objects of the EP&A Act. Our planning and environment team can provide assistance in relation to all aspects of development applications and appeals, including specific advice in relation to design requirements.   [1] As per s. 33 of the Interpretation Act 1987 (NSW) objects of an Act should guide the interpretation of the other provisions of the Act.  

Authors

Hasti Kalarostaghi, Partner Jessica Baldwin, Senior Associate Caitlin Polo, Lawyer