EDO NSW Fact Sheet 2.1.2 - Development Assessment

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

Topic 2 - Planning and Development

2.1 NSW Planning and Assessment Law

2.1.2. Development Assessment

Under the Environmental Planning and Assessment Act 1979, the definition of 'development' includes the erection of a building, carrying out of a work, subdivision, or a use of land.

‘Use of land', in planning law, is a term which refers to the type of activity which is carried out on the land, and is usually defined in terms of fairly broad categories. For example, converting a ‘retail' business into a spray-painting yard would probably be considered a change of use.

Development may involve very minor works on land such as the erection of fences or advertising signs, or it may involve no physical changes to the land at all.

For example, changing the use of land from a cow paddock to a sports field would be a form of ‘development' involving a change of use of the land, even if no structures were to be erected on the land.

2.1.2.1. Development Applications

Development consent is an approval allowing development to be carried out on land. The Environmental Planning and Assessment Act divides development into three broad categories:

In order to obtain development consent, the person proposing the development must lodge a development application.

A development application (DA) may only be made by the owner of the land or a person who has the landowner's written consent.

The DA must identify the applicant and the land to be developed, and describe the proposed development.

When is development consent required?

In order to determine whether development consent is required, it is necessary to refer to all relevant Environmental Planning Instruments (EPIs), including the relevant Local Environmental Plan (LEPs), Regional Environmental Plans (REPs) and State Environmental Planning Policies (SEPPs).

An LEP divides land into zones and identifies which types of development are permitted without consent, which are permissible with consent, and which are prohibited in each zone. The effect of an LEP may be modified by an REP or a SEPP.

For more information about Environmental Planning Instruments, see Section 2.1.1 above.

An LEP may provide that a certain type of development does not need consent in order to go ahead in a particular zone.

This approach will usually be used for development that is of low impact and is typical of what already exists in the zone (for example, farming in an agricultural zone).

However, other types of approval may be required, such as a construction certificate and an occupation certificate for a residential building.

State Environmental Planning Policy No. 4 provides that certain types of minor development which are ancillary or incidental to a permissible use already being carried out on the land do not require development consent, such as for loading facilities, or fences for certain types of existing dwellings. This policy overrides any provisions to the contrary in an LEP. However, there are some exceptions: for example, ancillary development will still require consent in a foreshore scenic protection area or sensitive coastal location.

Many activities of public authorities don't require development consent. The LEP may not require consent, or the authority may claim an exemption under State Environmental Planning Policy No. 4, which allows public authorities to carry out works such as dams, sewage treatment works and transmission lines without consent. However, environmental assessment of the activity may still be required under Part 5 of the Environmental Planning and Assessment Act (see Section 2.1.2.3 – Environmental Impact Assessment).

If an EPI provides that a certain type of development is permissible with consent, approval must be sought to carry out such development.

The procedures for applying for development consent are different depending on whether the development is classified as ‘complying development' and whether it is also ‘advertised development', ‘designated development' or ‘integrated development'. These terms are discussed in more detail below.

If an LEP provides that a certain type of development is prohibited in a zone, this usually means that no-one can apply to the council to carry out that kind of development.

However, some prohibitions contained in a LEP may be overridden by a SEPP. In other cases, a SEPP may create a prohibition which overrides a permissible zoning in the LEP.

For example, the 2004 State Environmental Planning Policy – Seniors Living makes housing for older people or people with a disability permissible in areas where other residential uses are permissible under the LEP, even if this type of housing is expressly prohibited in the LEP.

A prohibition does not always involve a total prohibition of a certain type of development, but may relate to the size, location, or other characteristics of the development. For example, many LEPs permit residential development only up to a certain height in each zone, and anything over this height becomes a prohibited development. These requirements are known as ‘development standards'.

State Environmental Planning Policy No. 1 – Development Standards provides that a development which fails to meet a development standard in an LEP may be permissible with consent if the applicant lodges an objection with their development application stating that compliance with the standard is unreasonable or unnecessary in the circumstances. In such a case, the consent authority may consider the application, and may grant consent if it is satisfied that the objection is well-founded, and if the Director General also agrees. The provisions of SEPP 1 have now been incorporated into the standard LEP instrument and will form part of the new draft principal LEPs in New South Wales.

Categories of development that require consent

If consent is required for development, the first question to ask is which category or categories of development it falls into, as many of these categories can overlap.

If it is complying development, a very simple assessment process is followed, and the development application (DA) may even be determined by a private certifier. If it is not complying development, there are several issues that need to be determined.

Firstly, is it designated development? This will make a difference to the level of environmental assessment required and the rights of third parties to be notified of the DA, object to the DA and appeal a decision to grant consent to the development proposal.

Secondly, is it integrated development? If so, approval needs to be obtained from other public authorities before the development can proceed.

Thirdly, is it advertised development? If so, the consent authority will have to give the public notice of the development application.

An EPI can identify some development to be 'complying development'. This category is intended to only apply to fairly routine development, such as extensions to a dwelling, or the construction of a swimming pool. An application for a complying development certificate must be publicly notified in accordance with any Development Control Plan.

If the development is complying development, a developer may apply to the local council or a private accredited certifier to assess the development application and decide whether it complies with all development standards applying to the development.

The council or accredited certifier cannot refuse to issue a complying development certificate if the proposed development complies with the relevant development standards and any requirements prescribed by the Regulations. There is no appeal against the grant or refusal of a complying development certificate.

Certain classes of high-impact development are called ‘designated development'. There are two ways a development can be categorised as designated development:

1) the class of development may be listed in Schedule 3 of the Environmental Planning and Assessment Regulation 2000 as being designated development; and

2) an LEP, REP or SEPP may declare a class of development to be designated development. However, in accordance with Ministerial Direction 10, draft LEPs are no longer allowed to identify development as designated development unless the prior agreement of the Director General has been obtained.

Examples of designated developments under the regulations include chemical factories, large marinas, quarries and sewage treatment works.

The local council will usually be the consent authority for designated development, however, the Minister will be the consent authority if the development is a project to which Part 3A of the Environmental Planning and Assessment Act 1979 applies (see Section 2.1.2.2 Major Projects and Critical Infrastructure).

In either case, there is a much more thorough assessment and notification process for designated development than for non-designated development and objectors have the right to appeal the merits of the decision to the Land and Environment Court.

Integrated development is development which, as well as development consent, requires one or more approvals under certain sections of the following State legislation:

The types of approval which trigger the integrated development provisions are listed in section 91(1) of the Environmental Planning and Assessment Act. Examples include:

For integrated development, the normal assessment and notification procedures are followed, but the consent authority must also ask the authority responsible for giving the other approval in advance whether it will consent to the proposal, and if so, on what terms.

The consent authority must not impose any conditions which are inconsistent with those indicated by the other approval authority. If the approval authority indicates that it will not grant approval, the consent authority must not grant development consent.

The Regulations, an EPI or a Development Control Plan may provide that certain types of development which are not designated development are advertised development.

This means that the development application must be publicly notified, and the public given an opportunity to make submissions. In other respects, the approval process is the same as for other non-designated development.

2.1.2.2. Major Projects and Critical Infrastructure

In 2005 the Environmental Planning and Assessment Act 1979 was amended to replace the former category of State significant development, for which the Minister is the consent authority, with a new category called ‘major projects' and ‘critical infrastructure'. These amendments introduced Part 3A to the Environmental Planning and Assessment Act and the Major Projects State Environmental Planning Policy 2005, which apply to major projects and critical infrastructure. The Minister is the consent authority for all major projects and critical infrastructure.

Major Projects and State significant sites

Major projects are developments that, in the opinion of the Minister, are of State or regional environmental planning significance. Major projects are usually developments, government infrastructure proposals, specified projects on State significant sites or activities which have significant environmental and social impacts, such as hospitals, large-scale mining and extractive industry, sensitive coastal developments, industrial projects and construction projects.

Major projects are identified in State Environmental Planning Policy (Major Projects) 2005 (Major Projects SEPP) or may be declared by order of the Minister. Such orders are published in the NSW Government Gazette. The Major Projects SEPP also identifies State significant sites. Certain types of development on these sites are major projects to which Part 3A applies. Such sites include Sydney Opera House and Luna Park.

Critical Infrastructure Projects

Critical infrastructure projects are projects which, in the opinion of the Minister, are essential for the State for economic, environmental or social reasons. At the time of writing, the only identified critical infrastructure project has been the Kurnell Desalination Plant.

There is no right of appeal for either proponents or objectors against the merits or the legality of approvals of critical infrastructure projects.

2.1.2.3. Environmental Impact Assessment

Environmental impact assessment (EIA) is a general term which refers to the process of assessing the potential environmental impacts of a proposed development or activity.

Environmental Impact Assessment of Developments

Most development applications must be accompanied by some form of EIA to enable the decision-maker to understand the likely impacts of the proposal before deciding whether to grant consent.

The assessment process should also encourage the applicant and the decision-maker to consider what measures can be adopted to minimise the impact of a proposal if consent is granted.

Statement of Environmental Effects

An application to carry out non-designated development must be accompanied by a Statement of Environmental Effects (SEE) which may be prepared by the applicant or by a consultant acting on behalf of the applicant.

The SEE must indicate the environmental impacts of the development, how the impacts have been identified and the steps which will be taken to protect the environment or to lessen harm to the environment.

Environmental Impact Statements

A development application to carry out designated development must be accompanied by an Environmental Impact Statement (EIS) which may be prepared by the applicant, but which is usually prepared by an appropriately qualified expert or experts on the applicant's behalf.

An EIS should give a detailed analysis of all potential areas of concern in relation to the development and its environmental impacts. An EIS should be written in easy to understand language and contain material which would alert lay people and specialists to problems inherent in carrying out the activity.

An EIS must address the requirements for an Environmental Impact Statement which include:

An EIS must be placed on public exhibition for at least thirty days, during which time members of the public may make submissions.

A copy of the EIS and any submissions must also be forwarded to the Director General. The Director General then reports on the development proposal and makes recommendations to the decision-making authority.

In deciding whether to proceed with the proposed activity, the decision-making authority must take into consideration these recommendations, as well as any submissions from members of the public.

Species Impact Statements

If the development is on land containing critical habitat or is likely to significantly affect threatened species, populations or ecological communities listed under the Threatened Species Conservation Act 1995, then the development application must be accompanied by a Species Impact Statement (SIS).

In deciding whether there is likely to be a significant impact, a consent authority must apply the ‘eight-part test', which sets out a list of factors to consider, such as whether a viable local population of the species is likely to be placed at risk of extinction and whether an area of known habitat is likely to become isolated from other areas.

Similarly, an SIS must be prepared if there is likely to be a significant impact on threatened fish or marine vegetation protected under the Fisheries Management Act 1994. Where an SIS is prepared, the concurrence of the Minister or Director General of National Parks and Wildlife (now the Department of Environment and Climate Change) is also required before development consent can be granted.

Text Box 2.3

Timbarra Protection Coalition v Ross Mining (1999) 46 NSWLR 55

The Timbarra Protection Coalition, represented by the Environmental Defender's Office, challenged the failure by a mining company, Ross Mining, to prepare a Species Impact Statement for extensions to its mine in the Malara State Forest. The case went to the Court of Appeal, where the Timbarra Protection Coalition was ultimately successful.

The decision established the legal requirement for an objective scientific assessment to be made as to whether a development is likely to significantly affect a threatened species in order to determine whether a development application should be supported by a Species Impact Statement.

It confirmed that a consent authority must fully and objectively consider the likely impacts of a development on threatened species, rather than simply relying on the information supplied by the developer.

This decision has resulted in many local councils requiring a more thorough assessment of likely impacts of developments on threatened species, and has made it easier for the public to challenge development applications which fail to adequately assess such impacts.

Environmental Assessment of Activities

Certain activities, such as the construction of roads or electricity infrastructure by government agencies or statutory authorities, may not require development consent, thus avoiding the normal environmental assessment procedures for consents. However, under Part 5 of the Environmental Planning and Assessment Act there is a ‘safety-net' which is a separate assessment procedure for such proposals. The Minister or public authority responsible for deciding whether to approve or proceed with an activity (called the ‘determining authority') is required to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. However, this requirement does not apply to the modification of an activity that will reduce its overall environmental impact where environmental impact assessment has already been carried out or to a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister.

Review of Environmental Factors (REF)

A determining authority usually decides whether to require a full EIS by considering a preliminary environmental assessment which is called a ‘Review of Environmental Factors' (REF). An REF has no legislative basis, but is usually required as the standard practice of the Department of Planning. An REF should contain sufficient information to address the criteria in the Department's publication entitled ‘Is an EIS required?' which are applied in order to determine whether there is likely to be a significant impact on the environment.

Environmental Assessment of Major Projects and Critical Infrastructure

The environmental assessment requirements for major projects and critical infrastructure are far more discretionary than the requirements for developments under Part 4, and activities under Part 5 of the Environmental Planning and Assessment Act 1979.

Once a development or activity is declared by the Minister, or identified in the Major Projects SEPP as a major project, Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 no longer apply to the project, nor do the provisions of Local Environmental Plans (LEPs) or Regional Environmental Plans (REPs). Whilst the permissibility of a proposed major project in the provisions of a LEP or a REP is a matter that the Minister must consider in determining whether to grant consent to a major project, the fact that a project is prohibited in an LEP or REP will not necessarily prevent it from being approved. The prohibition of proposed critical infrastructure in an LEP or REP is not a matter that the Minister has to consider when determining whether to approve a critical infrastructure proposal.

State Environmental Planning Policies also do not apply to major projects unless the policy expressly states that it applies to the particular project. Part 3A also sets out different environmental assessment requirements for major projects

Unlike the provisions of Part 4 of the Environmental Planning and Assessment Act 1979 which require proponents of integrated development applications to obtain additional approvals under other legislation, such approvals are not required for major project approvals. Approved major projects are exempt from having to obtain the following approvals:

In addition, the following orders and notices cannot prevent an approved critical infrastructure project from being carried out:

Once a major project is approved by the Minister, there is little another authority can do to prevent the project from being carried out. If an approved project requires an aquaculture permit, mining lease or environment protection licence under other legislation in order to be carried out, then another authority is not permitted to refuse that approval.

The Minister may allow or require the proponent of a major project to submit a concept plan for the project. The purpose of a concept plan is to outline what the project will entail and development options for the project. A concept plan is not required to include a detailed description of the project.

Director General's requirements for environmental assessment of major projects, concept plans and critical infrastructure

When an application is made to the Minister for approval of a major project or concept plan, the Director General will prepare the environmental assessment requirements for the individual project after consulting with relevant public authorities, such as the Department of Environment and Climate Change and local councils in the area where the project is to take place. Alternatively, the Director General may require the proponent to prepare the environmental assessment requirements for its own project in a form approved by the Director General. It is at the discretion of the Director General as to what form the environmental assessment is to take, although the Minister may publish guidelines in the Gazette setting out the requirements for the environmental assessment of major projects.

In relation to critical infrastructure proposals, the Minister may formulate guidelines for the environmental assessment of the proposal.

There is no requirement for an Environmental Impact Statement to be prepared in respect of designated development which is declared by the Minister to be a major project. The Director General may require the proponent to prepare a Statement of Commitments setting out what the proponent is prepared to do to mitigate or manage the environmental impacts of the proposal.

The Minister may require an application for approval of a major project or concept plan to be assessed by an Independent Hearing and Assessment Panel (IHAP) which may be a panel of experts or a panel of officers representing the Department and other relevant public authorities. The panel may hold public hearings which people who made submissions in relation to the proposal can attend. The IHAPl may provide recommendations on the proposed project to the Minister but the Minister is not bound by the recommendations of the panel.

Once the environmental assessment process has been completed, the Director General is required to prepare a report to the Minister which the Minister will use to decide whether to approve the project. The Director General's report is required to include:

2.1.2.4. Public Participation and Notification Requirements

Non-designated, non-advertised development

A consent authority (decision-maker) is not required by legislation to notify people when a development application has been lodged to carry out development which is not designated development or advertised development.

However, many councils have either a Development Control Plan specifying when people will be notified of development applications or a policy of notifying people who are likely to be affected by the development (for example, adjoining landowners). Where a council has a notification policy which it regularly observes, the Court has found that this will give rise to a legitimate expectation that the policy will be followed, thus making the policy legally binding on the council.

However, the Court has found that informal notification policies are not legally enforceable. For example, if a council only has an informal policy of notifying persons who may be affected by a development application, such as one which depends upon the council deciding whether a person is likely to be affected or not, the Court has found that such a policy will not give rise to a legitimate expectation to be notified, and is therefore not legally enforceable.

A Development Control Plan which specifies that certain types of development must be notified or publicly advertised is legally binding.

Members of the public are entitled to go to council offices to inspect development applications and supporting documentation free of charge (except for internal residential plans and sensitive commercial information) in relation to any development application and have a right to make copies of those documents. Council is entitled to charge a ‘reasonable' fee for copying.

Any person may make a submission to the consent authority, verbally or in writing, objecting to or supporting a development application.

Advertised development

An application to carry out advertised development must be notified by the consent authority as soon as practicable after receiving the application.

Written notice must be given to the owners and occupiers of adjoining land, and to such public authorities as may have an interest in the application. A notice must also be placed in a local newspaper.

After the application is notified, members of the public have fourteen days within which to inspect the development application and supporting documentation and make written submissions to the consent authority, or thirty days if the development relates to nominated integrated development (requiring a heritage, water or pollution approval), or threatened species. These submissions must be taken into consideration in deciding whether to approve the application.

Designated Development

As soon as practicable after a development application is lodged for designated development, the consent authority must give written notice of the application to:

The consent authority must also place a notice on the land and publish a notice in the local paper informing people that the development application has been made.

For at least thirty days after notification, the consent authority must place the development application and supporting documentation on public exhibition in its offices to provide an opportunity for members of the public to inspect the documents.

Any person may make a submission during the thirty-day submission period. A submission by way of objection should set out the grounds of the objection.

Major Projects and Critical Infrastructure

The Director General is required to make the environmental assessment documents prepared by a proponent for a major project or concept plan publicly available for at least 30 days. Those documents can be found on the website of the Department of Planning at www.planning.nsw.gov.au.

During the submission period, any person may make a written submission to the Director General in relation to the application for approval of the project. The Director General must then provide copies of the submissions or a report of the issues raised in the submissions to the proponent of the project. If the project proposal requires an environment protection licence (for pollution), then the Director General must also provide the submissions to the Department of Environment and Climate Change.

The Director General may require the proponent to provide a response to the issues raised in the submissions and a preferred project report that outlines any changes to the project to address environmental impacts and a revised Statement of Commitments. The changes to the project report do not have to be made publicly available unless the Director General requires them to be and that is a matter for the Director General's discretion. There is no provision in the legislation for the proponent's response to the public submissions to be made publicly available.

2.1.2.5. Development Consents

The consent authority (decision-maker) decides whether to grant or refuse a development consent. If the consent authority is the local council, it is the elected councillors who make the decision, although sometimes the councillors may delegate power to determine certain standard or non-contentious applications to the general manager or another council officer.

When determining a development application, the consent authority must take into consideration the matters listed in section 79C(1) of the Environmental Planning and Assessment Act, which include:

then the consent authority must also notify, within 14 days of the decision, any person who made a written submission or objection during the exhibition period. Failure to send the notice within the 14 days will not invalidate the consent.

How may a development consent be modified?

A developer can apply for a development consent to be modified provided that the proposal as modified is still substantially the same development.

If the original development was designated development, applications for modifications involving more than minimal environmental impact must be publicly advertised and written notice given to those who lodged submissions in relation to the original development application. Other modification applications must be notified or advertised in the same manner as the original development application for a maximum of 14 days, unless a Development Control Plan provides otherwise.

When considering an application for modification, the consent authority must consider again the matters listed in section 79C(1) of the Environmental Planning and Assessment Act to decide whether the modification should be granted.

If the modification will result in a substantially different development, a new development application should be lodged.

Do development consents lapse or expire?

When granting development consent, the consent authority can specify a period (no less than two years for consent to subdivide, or erect or demolish a building) within which work must be commenced on the proposed development, or consent will lapse. If the period is not specified in the consent, a default period of five years applies.

Development consents are usually granted for an indefinite period of time and, unless the consent has lapsed, any person who has the use of the land in the future can take advantage of the consent to carry out permitted activities. In this sense, the development consent runs with the land.

Construction certificates and other approvals

Once a consent has been granted to carry out development, further approvals may still be necessary before the development can go ahead.

For example, where a building is to be erected, a construction certificate must be obtained before work can lawfully commence. This is to certify that the plans comply with the development consent and with relevant predetermined standards such as the Building Code of Australia. Similarly, subdivision work under a development consent must not be commenced until the developer has obtained a construction certificate.

An occupation certificate is necessary before a new building can be occupied or used. A license under another Act may also be necessary to carry out some development proposals, such as a liquor license for hotel premises.

Major project and concept plan approvals

Once the Minister has reviewed the Director General's report in respect of a proposed major project or concept plan, the Minister may decide to approve the proposal with such conditions or modifications to the project as the Minister thinks are required. If the project would be wholly prohibited under an Environmental Planning Instrument if it were development to which Part 4 of the Environmental Planning and Assessment Act 1979 applied, then the Minister cannot approve the project.