By Aaron Gadiel, Partner

A new decision from the Court of Appeal has re-affirmed some key legal points about development control plans (DCPs).

DCPs are among the most frequently relied upon — and most frequently misunderstood — instruments in development application assessment.

Local council officers often treat DCP standards as though they carry the same binding force as an environmental planning instrument (EPI).  They do not.

This month’s NSW Court of Appeal decision in Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123 is a helpful reminder as to the status of DCPs.

This article gives an overview of the legal framework governing the status of DCPs — and the circumstances in which their provisions must give way.  The article deals with Conway, but also deals with legal points not addressed by Conway.  This article is not a replacement for legal advice.

The purpose of a DCP 

Section 3.42(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) describes the principal purpose of a DCP as providing guidance — to both applicants and consent authorities — on:

• giving effect to the aims of any relevant environmental planning instrument;
• facilitating development that instrument permits; and
• achieving the objectives of the applicable land use zones.

Critically, section 3.42(1) expressly says that provisions of a DCP made for this purpose are ‘not statutory requirements’.  They guide, rather than bind.

A mandatory (but flexible) consideration

Under section 4.15(1)(a)(iii), a consent authority must ‘take into consideration’ the relevant provisions of a relevant DCP when assessing a development application.

This does not mean that a DCP must be rigidly followed (Conway at [40]).

The NSW Court of Appeal clarified the practical effect of this obligation in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 (at [213]-[215]).

At a minimum, a decision-maker must ask what the DCP provides — but is not obliged to refuse an application simply because a DCP standard is not met.

Instead, the decision-maker may need to consider why the standard should not apply, or whether non-compliance can be addressed through conditions of consent.  Reasons advanced by an applicant for departing from a control must also be considered.  Provided genuine consideration is given, a DCP standard may ultimately not be applied at all, if a proper merit case is made out on the facts.

Draft DCPs can still matter

Unlike draft EPIs, the EP&A Act does not expressly require a consent authority to consider a draft DCP.

Nevertheless, both the consent authority (and the Land and Environment Court in a merit appeal) may have regard to draft DCP as part of its consideration of the ‘public interest’ (a separate mandatory consideration in section 4.15(1)(e) of the EP&A Act): Carsens v Pittwater Council [1999] NSWLEC 249 at [25] and Pittwater Council v Mount [2000] NSWLEC 256 at [10].

For example, in Maxnoz Pty Ltd v Hurstville City Council (2006) 145 LGERA 373, the Court (at [20]) accepted that the council could consider an interim residential development code that had earlier existed as a draft DCP.

When a DCP has no effect at all

At times, a DCP has no effect at all.  Section 3.43(5) of the EP&A Act is the key constraining provision.

A DCP provision has no effect to the extent it is:

• the same, or substantially the same, as a provision of an applicable EPI; or
• inconsistent or incompatible with a provision of an applicable EPI.

(An EPI includes a local environmental plan (LEP) and a state environmental planning policy (SEPP).)

The Land and Environment Court has often applied this provision.  Some examples:

• Height vs storeys — In Vision Land Glebe Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1488 (at [44]), the parties accepted a DCP’s five-storey control was inconsistent with the LEP’s 27-metre height standard, since more storeys could fit within that height.
• Heritage demolition — In Onikul v Woollahra Municipal Council [2015] NSWLEC 1345 (at [66] and [84]), a DCP provision purporting to prevent demolition of a heritage building had no effect, given that the LEP permitted demolition.
• Permissibility trumps DCP restriction — In Ironlaw Pty Limited v Wollondilly Shire Council (No 3) [2014] NSWLEC 1057 (at [96]), a DCP provision that would have blocked an otherwise-permissible industrial development on rural land was found to be inconsistent with the EPI and so had no effect.
• Site area vs minimum lot area — In Level 1 Construction Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1405 (at [88]), a DCP’s minimum site area per dwelling provision had no effect, being ‘incongruent’ with the minimum lot area fixed by a SEPP.
• Lot width/depth as disguised site controls — In Gorgees v Fairfield City Council [2021] NSWLEC 1283, the DCP lot width and depth controls were treated as effectively a lot size control, ‘not dissimilar’ to the applicable EPI site area control — and were found to have no effect.

It is also helpful to consider the Land and Environment Court’s application of a separate statutory inconsistency test that applies to concept development consents and detailed development applications.  The test is similar to, and likely relevant to, the application of the inconsistency test between EPIs and DCPs.

In The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 at [44], the Chief Judge (Preston CJ) illustrated that inconsistency can cut both ways: a building that significantly undershoots an approved building envelope (for example, 10 storeys against an approved 15) can be just as inconsistent as one that exceeds it.

Speaking generally, we consider that (in light of this decision) DCP provisions that necessarily have the effect of materially preventing a development from reaching the planned height or intensity envisaged by an EPI would be inconsistent with that EPI and have no effect.

For some ‘edge’ cases there may be room for legal debate about whether a provision has no effect or should just be given little weight (in the light of a competing control in an EPI).

For example, section 177 of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) sets out a landscaping consideration for development in ‘low and mid rise housing’ areas zoned R3 and R4.  It says that development consent must not be granted for development for the purposes of residential flat buildings or shop top housing unless the consent authority has considered the Tree Canopy Guide for Low and Mid Rise Housing (2025).

The Tree Canopy Guide sets benchmarks for tree canopy at 15 per cent and 7 per cent (with some ‘enhanced’ numbers for larger sites).

Some DCP provisions impose a higher general standard for, say, deep soil (such as the Ku-ring-gai Development Control Plan which sets a 40 per cent or 50 per cent standard in control 1 of section 7A.6 ‘Deep Soil Landscaping’).  When confronted with such an inconsistency a consent authority might conclude that this provision means that the DCP provision has no effect.  Alternatively, the consent authority may decide that it does have effect, but gives it little weight in the light of the more-tailored Tree Canopy Guide that has been explicitly prepared in the light of the heights and floor space anticipated in the ‘low and mid rise housing’ areas.

SEPPs can override DCPs too

Several SEPPs contain their own override mechanisms that limit the operation of DCP provisions under section 3.43(5) of the EP&A Act.

The most notable of these is section 2.10 of the State Environmental Planning Policy (Planning Systems) 2021.  This provision says that DCPs do not apply to state significant development.

In another example, section 149 of the Housing SEPP says that a requirement, standard or control for residential apartment development in a DCP (where the development is subject to the Apartment Design Guide) has no effect in relation to:

• visual privacy,
• solar and daylight access,
• common circulation and spaces,
• apartment size and layout,
• ceiling heights,
• private open space and balconies,
• natural ventilation,
• storage.

In a further example, section 3.27 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 contains a broad (although not exhaustive) override of DCP provisions for centre-based child care facilities.

In the recent decision of Palm Lake Works Pty Ltd v Tweed Shire Council [2025] NSWLEC 1847, the Court  (at [78]-[79]) agreed with the submissions made by the developer (represented by Mills Oakley) that the provisions of the DCP prohibiting development within ecological buffer zones were fundamentally inconsistent and incompatible with the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience and Hazards SEPP).

Sections 2.8, 2.10 and 2.11 of the Resilience and Hazards SEPP provide that development consent may be granted on land within areas mapped as ‘proximity area for coastal wetlands’, ‘coastal environment area’ and ‘coastal use area’, subject to consideration of the impacts of the proposed development on a number of matters, and satisfaction of further matters.  In contrast, the DCP prohibited development within these areas in totality, and as a result the developer submitted that the DCP was inconsistent and incompatible with the SEPP and the DCP provisions had no effect.  The Court accepted the application of the DCP in relation to prohibiting development within the mapped ecological buffers.  The Court found that it was relevant to consider the environmental impact of the incursion of the proposed development into the buffer zones, but not to prohibit development if those impacts are acceptable, as per the relevant parts of the Resilience and Hazards SEPP.

Compliant development cannot be held to a higher standard

Section 4.15(3A)(a) of the EP&A Act, provides that where a development complies with a DCP standard for a particular aspect of development, the consent authority cannot demand a more onerous standard for that same aspect.

Three decisions illustrate the Land and Environment Court’s application of this rule:

• In Leice Pty Ltd v City of Canada Bay Council [2021] NSWLEC 1627, a 10-18 storey mixed-use development complied with a DCP’s zero-setback control for one street frontage. The local council’s attempt to insist on a four-metre setback (on merit) was rejected as an impermissible, more onerous standard.
• In Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582, a Double Bay residential flat building complied with DCP side setbacks. The council’s amenity-based argument for greater setbacks was likewise rejected.
• In Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585, a 20-storey boarding house proposed 15 car spaces in line with the DCP’s parking table. The council could not require a higher rate drawn from a non-discretionary standard in a SEPP.

Non-Compliance: Obligation to allow reasonable alternatives

Where a development does not comply with a DCP standard, section 4.15(3A)(b) of the EP&A Act requires the consent authority to apply the provisions flexibly and allow reasonable alternative solutions that achieve the standard’s objects (Conway at [45] and [69]).

Bellenger v Randwick City Council [2017] NSWLEC 1 is the leading authority on how this works in practice:

• The development itself will not ordinarily count as a ‘reasonable alternative solution’.
• What is required is an alternative means of achieving the standard’s objects — not merely non-compliance dressed up as an alternative.
• ‘Reasonable alternative solutions’ might be solutions in the development application that provide an alternative means of achieving the objects of those standards (for dealing with that aspect of the development).
• The provision setting the standard with respect to an aspect of development may implicitly incorporate a solution that achieves the objects of the standard.
• The consent authority is required to allow reasonable alternative solutions — that is to say, reasonable solutions that are ‘alternative’ to the solutions embodied in the standard — that also achieve the objects of the standard.
• The word ‘allow’ does not mean that the consent authority cannot refuse (for other reasons) consent to a development that proposes reasonable alternative solutions that achieve the objects of the standard. What is allowed by the consent authority are the reasonable alternative solutions, not the development itself.

The facts of Bellenger provide a useful illustration:

• Clause 6.7 of the Randwick DCP sets a standard in respect to an aspect of development, being the minimum dimensions of a hardstand car space.
• These minimum dimensions embodied a solution that achieved the objects of the standard, including not posing undue safety risks on building occupants and pedestrians.
• The development that was the subject of the development application did not comply with these minimum dimensions of the standard.
• The development application did not propose any ‘reasonable alternative solutions’ that would achieve the objects of the standard dealing with the minimum dimensions of the hardstand car space.
• The Chief Judge of the Land and Environment Court (Preston CJ) held that a commissioner (standing in the shoes of the consent authority) was not able to consider and ‘allow’ a reasonable alternative solution (as no such solution was offered).

Don’t worry about the precedent!

Section 4.15(3A)(c) of the EP&A Act confines a consent authority’s consideration of DCP controls to the subject development application, and not any other development applications.

This provision ‘contains’ the discretion of the consent authority: Hurley v Sutherland Shire Council [2016] NSWLEC 1630 at [60].

In 90 Croatia Properties Pty Ltd v Liverpool City Council [2021] NSWLEC 1177, the Court said (at [62]) that consent authorities:

• may only consider the provisions of the DCP in connection with the assessment of the particular application; and
• are not to have regard to how the provisions in the DCP have been applied previously or might be applied in the future.

This limitation does not only operate when consideration of past or future development applications would be ‘unreasonable’.  The limitation on the scope of consideration applies more generally.

Key takeaways

• In general, DCP standards guide, but do not bind. The mere departure from a DCP standard does not necessitate refusal.
• A DCP provision that duplicates or conflicts with an EPI (LEP or SEPP) is legally inoperative to that extent.
• Compliant development cannot be forced to meet a higher bar than the DCP specifies.
• Non-compliant development may still proceed where a reasonable alternative solution achieves the DCP standard’s objectives — but the mere fact of non-compliance is not itself such a solution.
• A consent authority cannot use precedent as a basis for refusing to allow a non-compliance with a DCP.

Understanding these limits is essential for applicants seeking to challenge an overly rigid application of DCP controls.