The rule in Coty
Why is it important for Councils and developers to know the rule in Coty?
At the local government level, development is regulated using a planning scheme.
Planning schemes are not prepared overnight. They take months and perhaps years of work.
Planning schemes contain planning strategies.
The Council wants certain types of development here, but not over there.
How that is expressed in a draft planning scheme may be quite different to what is in a current planning scheme.
And it is this difference that is important in the assessment of development applications.
If the draft planning scheme contains a strategy that would be frustrated by the approval a development application, then a Council is entitled to refuse the application based on the rule in Coty v Sydney City Council.
It is also fair to say that the significance of the difference in the new strategy is also important. Small differences are less likely to be used to refuse development applications than large differences.
A good example might be a subtle increase to minimum car parking numbers compared to, say, a not insignificant reduction in preferred building height.
In Coty, it was a change to preferred use of the area in which the land fell from industrial to residential.
But does the rule in Coty cut the other way?
Can the contents of a draft planning scheme be relied upon to approve a development proposal?
No, is the short and the long answer.
This is because a draft planning scheme is just that – a draft.
It has no legal force.
It is possible, for example, that the draft planning scheme may never be finalised in that particular form.
Is the rule fair to developers?
Maybe not.
But planning schemes are there to serve the public interest – not a land owner’s interest.
If you are planning on making a development application because it is supported by a draft planning scheme, it is probably best to time the application so that it is not decided before the draft planning scheme becomes final.
Otherwise, an approval of the development application based on the draft planning scheme is probably not justifiable, so far as the law is concerned.
