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The information contained in this fact sheet is current as at 18 October 2006.

Topic 2 - Planning and Development

2.1. New South Wales Planning and Assessment Law

The principal law regulating land use in New South Wales is the Environmental Planning and Assessment Act 1979. The Act is administered by the Minister for Planning (the Minister).

2.1.1. Environmental Planning

Environmental planning under the New South Wales Environmental Planning and Assessment Act 1979 refers to the process of developing plans to regulate competing land uses. This is achieved through the use of ‘environmental planning instruments'.

2.1.1.1. Types of Environmental Planning Instruments

The Environmental Planning and Assessment Act establishes three types of Environmental Planning Instruments (EPIs):

Local Environmental Plans (LEPs);
Regional Environmental Plans (REPs), and
State Environmental Planning Policies (SEPPs).

The provisions of EPIs are legally binding on both government and developers. The full text of most EPIs is available online at: www.legislation.nsw.gov.au. In addition, LEPs are often available on council websites.

EPIs should set out an overall plan and vision for development into the future. They must set out aims and objectives designed to achieve any of the objects of the Environmental Planning and Assessment Act and policies and strategies for achieving those objects.

EPIs will usually provide a range of possibilities and constraints for development over the whole area to which the plan relates.

Certain planning instruments are 'deemed' to be Environmental Planning Instruments. These are planning instruments created before the commencement of the Environmental Planning and Assessment Act in 1979, such as 'planning scheme ordinances' or 'interim development orders'. They contain similar sorts of provisions to EPIs.

On 16 June 2005 the Environmental Planning and Assessment Act 1979 was amended to provide for the standardisation of EPIs. The Minister is now able to prescribe the form and content of EPIs. A standard EPI is known as a ‘standard instrument'. Standard instruments themselves are not EPIs, rather they are a blueprint of what an EPI should contain. To date, only a standard instrument for Local Environmental Plans has been gazetted.

Local Environmental Plans

Local Environmental Plans (LEPs) are developed by local councils. LEPs divide the area they cover (Local Government Area) into ‘zones', such as rural, residential, industrial, recreational, environmental protection and business zones. The LEP usually gives a list of ‘objectives' in relation to each zone and a list of the types of development that are permissible without consent, permissible with consent, and prohibited in each zone.

To determine whether a development is permitted within a particular area, first contact the council to find out the zoning of the area under the LEP. Refer to the colour-coded planning map of the area, then to the land-use table in the LEP which sets out the permitted and prohibited land uses for the relevant zone. Particular purposes for which land is zoned may include homes, shops, factories, open space, conservation and environmental protection.

A number of EPIs may affect a given site. A certificate can be obtained from the local council telling you which EPIs apply. These certificates, called ‘section 149 certificates', are usually prepared for inclusion in contracts to sell land or obtain finance and cost about $40.

From 31 March 2006, LEPs are required to be prepared in accordance with the standard LEP instrument. The standard LEP instrument is a document prepared by the Department of Planning which prescribes the form and content of LEPs throughout New South Wales.

The standard LEP instrument contains standard definitions, zones, clauses and land-use table as well as a standard format which all local councils in New South Wales are required to adopt in a new principal LEP for their entire Local Government Area. Councils have 2 to 5 years from the date of the standard instrument coming into effect to adopt the standardised format. The standard LEP instrument prescribes mandatory and optional provisions. All LEPs are now required to incorporate the mandatory provisions of the standard LEP instrument before they can be publicly exhibited or recommended for gazettal.

Regional Environmental Plans

Regional Environmental Plans (REPs) are plans drafted by the Department of Planning (the Department) at the direction of the Minister or Director General of Planning (the Director General), and apply to a nominated ‘region', which may be smaller or larger than a single Local Government Area.

REPs can regulate any matter which the Minister believes is of environmental planning significance for the region.

For example, the State Government can use an REP to completely override controls in an LEP applying to an area, thereby substituting its own list of permissible and prohibited developments, or it may substitute the Minister for the local council as the consent authority in respect of certain types of development.

State Environmental Planning Policies

State Environmental Planning Policies (SEPPs) cover matters that the Minister believes are of environmental planning significance for the State. These policies may take many forms – they may facilitate development or provide increased planning protection in sensitive areas. They may apply generally across the State or apply to specific areas.

The practical effect of SEPPs is often to take power away from councils in order to prohibit certain types of development in that council's Local Government Area. Other SEPPs make the Minister the consent authority for certain types of high-impact development, or development in sensitive areas.

Examples of important SEPPs include:

State Environmental Planning Policy No. 1 – Development Standards

This policy enables flexible interpretation of development standards. A developer may apply for consent if the objectives of an LEP are met, even though some standards set in the LEP are not met; for example, floor space ratio or height restrictions. The standard LEP instrument sets out the circumstances under which a development standard in an LEP or other EPI may be varied. Once an LEP has been implemented in accordance with the provisions of the standard LEP instrument, SEPP 1 will cease to apply to that council area. The Department's intention is to repeal SEPP 1 once all councils have adopted new LEPs using the standard instrument.

State Environmental Planning Policy No. 4 – Development Without Consent and Exempt and Complying Development

This policy permits certain development by public authorities without development consent, and also makes minor development which is auxiliary to existing development, for example fences on existing houses, permissible without consent.

State Environmental Planning Policy No. 14 – Coastal Wetlands

This policy provides additional protection for coastal wetlands by requiring development consent to be obtained for the clearing, draining, filling or construction of levees on mapped coastal wetlands. These types of development will require both an Environmental Impact Statement and the concurrence of the Director General before approval can be granted.

State Environmental Planning Policy No. 19 – Urban Bushland

This policy seeks to protect bushland in certain urban areas by restricting development in or adjacent to bushland reserves.

State Environmental Planning Policy No. 26 – Littoral Rainforests

This policy seeks to protect coastal rainforests by requiring development consent for development in or adjacent to mapped coastal rainforest areas. An Environmental Impact Statement and the concurrence of the Director General may also be required under this policy.

State Environmental Planning Policy No. 33 – Hazardous and Offensive Development

This policy sets out additional requirements for assessment of the impacts of hazardous and offensive industries.

State Environmental Planning Policy No. 44 – Koala Habitat Protection

This policy seeks to protect koala habitat by requiring plans of management for development in core koala habitat and inclusion of core koala habitat in environment protection zones.

State Environmental Planning Policy No. 71 – Coastal Protection

This policy provides for certain developments within the coastal zone or in certain sensitive coastal locations to be referred to the Director General, and also requires master plans for certain subdivisions within sensitive coastal locations.

For a full list of Environmental Planning Instruments, visit www.legislation.nsw.gov.au.

Text Box 2.1

Example: Using Environmental Planning Instruments

You are a member of a local bushcare group. You are concerned about a proposed warehouse development on a block of bushland near the Hawkesbury River. You want to know whether the proposed development is permissible under the relevant Environmental Planning Instruments.

You obtain a section 149 certificate from Hawkesbury City Council, or consult with council staff and councillors and read business papers from council meetings, and discover that:

Under the Hawkesbury Local Environmental Plan 1989, the land is zoned Environmental Protection (Scenic) 7(d1). Bulky goods areas, showrooms and commercial premises are listed as prohibited development.
Under Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River, there are restrictions in relation to heritage items, wetlands and extractive industry.
Under State Environmental Planning Policy No. 19 – Bushland in Urban Areas, development consent is required for the removal of bushland in certain areas.

You conclude that a warehouse, being commercial premises, is not permissible. Council could not lawfully approve a development application for a warehouse.

Inconsistency between Environmental Planning Instruments

When there is an inconsistency between Environmental Planning Instruments, there is a general presumption that SEPPs prevail over REPs and LEPs and REPs prevail over LEPs. If there is an inconsistency between two EPIs of the same type (such as two SEPPs), the more recent instrument usually prevails over an earlier instrument to the extent of any inconsistency, unless it is stated otherwise.

2.1.1.2. Preparation of Environmental Planning Instruments

Local Environmental Plans

Local Environmental Plans are prepared by local councils, but the Minister for Planning has ultimate say as to whether a LEP is approved and comes into force. LEPs may relate to the whole or part of a Local Government Area.

Before drafting a new LEP, the council must prepare an environmental study, the purpose of which is to analyse the suitability of land for future development or for conservation. However, the need for an environmental study for amendments to the principal LEP may be waived by the Director General.

An environmental study will be required for an amendment to an LEP which involves the rezoning of a particular site to enable previously prohibited development to proceed (known as 'spot re-zoning') where the re-zoning is inconsistent with a section 117 Ministerial direction. Developers can have development applications and spot rezoning proposals processed jointly.

After preparing a draft LEP, the council must submit it to the Department for a certificate allowing the draft to be exhibited. A certificate will not be issued to the council unless the Director General is satisfied that the draft LEP has been prepared in accordance with the standard LEP instrument.

The council must then notify the public that a draft LEP has been made and place it on exhibition for 28 days during which time members of the public may make submissions. The council may hold a public hearing in respect of a submission made in relation the draft LEP if requested by a member of the public to do so and if the council considers that the submission warrants a public hearing. The council then submits the draft plan, with details of submissions received, the report of any public hearing and any proposed alterations to the Department of Planning.

The final decision about whether to approve a draft LEP lies with the Minister. The plan can also be altered by the Minister, if he or she believes that issues of State or regional planning significance are at stake. The Minister may direct a council to re-exhibit wholly or in part a draft LEP that has been amended.

Regional Environment Plans

The Minister or Director General may make a draft Regional Environmental Plan with respect to any matter which is of significance for environmental planning in the region.

The Director General must notify affected councils that the Department proposes to prepare a draft plan, and he or she must prepare an environmental study for the affected area. An environmental study is not required if a REP is only being amended, unless the Minister directs to the contrary.

The draft plan is exhibited in the Department and on its website, and the public may make submissions. The Minister has final say as to whether the plan is approved.

State Environment Planning Policies

The Minister or Director General may direct that a draft SEPP be prepared by the Department in relation to matters which are of environmental planning significance for the State.

There is no compulsory requirement for public notification of a draft SEPP, but the Minister may decide to advertise the draft plan and receive submissions.

The final decision whether to approve the plan as drafted by the Department, or with alterations, rests with the Minister.

2.1.1.3. Public Participation in Environmental Planning

Public participation in environmental planning processes plays a key role in promoting improved environmental, social and economic outcomes.

As discussed above, members of the community have formal opportunities to make written submissions in relation to Local Environmental Plans and Regional Environmental Plans and, in some cases, State Environmental Planning Policies.

Common concerns about Environmental Planning Instruments include:

They didn't do an environmental study

Preparing an environmental study for a draft LEP or REP is only mandatory if the plan is the first to be made for the area, unless the Minister or Director General directs to the contrary. If a local environmental study is required, the Department can set guidelines for the preparation of the plan. Otherwise, it is up to council to decide what to include in the study. The current focus of the local planning system is to ensure that spot re-zonings and other changes to LEPs are justified in accordance with relevant local and State planning strategies and ministerial directions. Accordingly, spot re-zonings which are not compatible with an agreed planning strategy will usually need to be justified by an environmental study.

The environmental study is inadequate

You should spell out the inadequacies of any environmental study in your submission on the draft LEP or REP. Remember that the environmental study is not an end in itself. Concentrate on the provisions of the draft plan, not on the study.

The rezoning is not justified by the environmental study

The Environmental Planning and Assessment Act 1979 states that the council must 'have regard to' any environmental study in preparing a draft LEP, but it does not require the council to make the plan in accordance with the findings of an environmental study. You should point out any divergence between the study and the plan in your submission, but this would not provide a ground for a legal challenge unless it could be shown that the council did not consider the study at all when making the draft LEP.

2.1.1.4. Environmental Planning and Development Applications

If you are concerned about a development proposal, the individual development application will often not be the real problem.

For example, you may be concerned about the inappropriateness of the type of development permitted by the relevant Environmental Planning Instruments, not the quality of the particular development application. This is a zoning problem.

To respond to this problem, you can:

Lobby council to rezone the land. Run a community campaign to raise awareness of the issue and build community support for your position. Support your arguments with evidence about the environmental, social or economic benefits of rezoning.
Check that the development application has correctly described the proposal. A developer cannot get consent for a prohibited use by labelling the proposal as if it were a permitted one. Get legal advice if you doubt the description given in a development application.
Check that the Environmental Planning Instrument was correctly made. An EPI that is not made in accordance with procedural requirements may be invalid. You will need to act quickly if you propose to take legal action, because the validity of an EPI cannot be challenged more than three months after the date of its publication in the Gazette.

2.1.1.5. Community Land

Land which is owned by or is under the control of a local council (with some exceptions, such as roads and crown reserves) must be classified as either ‘community land' or ‘operational land' under the Local Government Act 1993.

Community land will ordinarily be land which is open to the public, such as a park, bushland reserve or sportsground, while operational land may be held by a council as an asset or used for other purposes such as works depots or garages.

The purpose of the ‘community land' classification is to identify council-owned land which should be set aside for use by the general public.

What are the restrictions on community land?

There are a number of restrictions on the way councils can deal with community land:

community land cannot be sold, exchanged or otherwise disposed of;
a council can grant a lease or licence over community land, but only for certain purposes, some of which must be expressly authorised by the Plan of Management for the land;
community land must be managed in accordance with a Plan of Management; and
community land may only be dedicated as a public road where the road is necessary for the public enjoyment of the land.

Classification of Community Land

Land may be classified as community land by a Local Environmental Plan or by resolution of the council. Land which is newly acquired by the council must be classified as community land or operational land by a council resolution within three months of acquisition, otherwise it becomes community land by default.

Normally, land can only be reclassified from community land to operational land by making a new LEP. The procedures for making an LEP must be complied with, including public exhibition of the plan and consideration of submissions from members of the public. The plan must be made by the Minister for Planning.

In addition, a public hearing must be held in relation to the reclassification proposal.

Where land has been dedicated to a council by a developer as a condition of development consent, it may be reclassified from community to operational land by resolution of the council, but only where council is satisfied that the land is unsuitable for the provision of public amenities or services.

Before such a resolution is passed, there must also be public notification, a public hearing, and an opportunity for members of the public to make submissions.

Plans of Management

A local council must make a Plan of Management for every piece of community land in its area. A single Plan of Management can relate to one or more areas of community land.

Each plan must place the land to which it relates into one of five categories. These are:

natural area;
sportsground;
park;
area of cultural significance; or
general community use.

Natural areas must be further categorised as bushland, wetland, escarpment, watercourse or foreshore.

The Local Government Act provides ‘core objectives' for the management of each of these categories of land. These objectives are in many cases quite restrictive and limit the type of activities for which the land may be used or leased.

For example, in relation to a natural area, the core objectives are:

to conserve biodiversity and maintain ecosystem function in respect of the land, or the feature or habitat in respect of which the land is categorised as a natural area;
to maintain the land, or that feature or habitat, in its natural state and setting;
to provide for the restoration and regeneration of the land;
to provide for community use of and access to the land in such a manner as will minimise and mitigate any disturbance caused by human intrusion; and
to assist in and facilitate the implementation of any provisions restricting the use and management of the land that are set out in a Threatened Species Recovery Plan or Threat Abatement Plan.

The Plan of Management must also give objectives and performance targets for the land to which it relates, and the means by which the council proposes to assess its performance in managing the land.

Community land is still subject to zoning controls under the Environmental Planning and Assessment Act – Plans of Management and the requirements of the Local Government Act operate as additional controls on the land.

How are Plans of Management made?

Plans of Management are drafted by the local council. Draft Plans of Management must be advertised and placed on public exhibition, giving the public an opportunity to make submissions.

A public hearing must be held if the plan would have the effect of re-categorising the land to which it applies (for example from ‘natural area' to ‘park'). After considering submissions from members of the public, the council may adopt a Plan of Management by resolution at a council meeting.

Once it is adopted, a Plan of Management may only be amended by making a new Plan of Management for the land.

Can community land be leased or licensed?

A lease or licence can only be granted over community land for certain purposes which include:

public utilities;
council housing;
filming projects;
services or facilities connected with public recreation, culture, welfare or development (including restaurants, childcare centres and surf lifesaving clubs);
purposes described as a ‘core objective' of that category of land (for example, the lease of land categorised as a sportsground for organised sporting activities); and
other purposes described in the Regulations.

Except for certain public utilities, underground pipes and filming projects, a lease or licence may only be granted if the Plan of Management expressly authorises the grant of a lease or licence for the purpose concerned, and only if the granting of the lease is consistent with the core objectives for that category of land.

The purposes for which land categorised as a natural area can be leased are much more restricted, with only very minor buildings and structures to be erected on such land.

The council must give public notice of a proposal to lease community land, including exhibiting notices on the land and notifying adjoining landowners, and must accept public submissions for a minimum 28-day period. In some cases, the Minister for Local Government may request that the council refer a proposed lease to the Minister for concurrence.

If a proposed lease is for a period of more than 5 years, it can only be granted by tender, unless granted to a non-profit organisation. If a person objects in writing to the granting of the lease, licence or other estate, the council must obtain the consent of the Minister before granting the lease.

Public Participation and Appeals

Plans of Management for community land must be made available for inspection and sale at council offices. In addition, members of the public can inspect a register of land owned and controlled by the council. Plans of Management are often available on council websites.

As described above, the Local Government Act provides for public participation in the form of written submissions or public hearings in relation to proposals to re-classify community land, proposals to lease community land, and draft Plans of Management. The community may also influence council's decisions in relation to community land by lobbying elected councillors.

If a council fails to comply with the provisions of the Local Government Act or the Environmental Planning and Assessment Act in relation to community land, any person can bring proceedings in the Land and Environment Court to restrain a breach of either Act. You should seek legal advice before taking any court action.

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