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“Environment planning instruments” is the collective name for LEPs, REPs and SEPPs (but does not include development control plans (DCPs).1 Note: Under the 200 Amendments, REPs will soon be abolished. Consequently, this Fact Sheet deals mainly with LEPs and SEPPs.2
The provisions of EPIs are legally binding on both government and developers.
2.1 How can I find a LEP or SEPP?
The full text of all EPIs is available online at the NSW government legislation website.
EPIs can contain provisions which control development, including when development consent is required, reserving land for public use (eg hospitals, parks, schools), protecting trees or vegetation, protecting threatened species and their habitats, and controlling advertising.3
An EPI can also:
specify whether development consent is required,
prohibit certain types of development (prohibited development),
declare a category of development to be designated development (which requires an environmental impact statement),
declare when the concurrence (agreement) of a minister is required, and
declare categories of advertised development.4
Older planning instruments created before the EPA Act commenced, such as “planning scheme ordinances” or “interim development orders” are “deemed” to be EPIs.5
2.2 Standardisation of EPIs
In 2005, the EPA Act was amended to encourage the standardization of EPIs and the staged repeal of older EPIs.6
The amendments allow the Planning Minister to prescribe the form and content of an EPI by issuing a “standard instrument”.7 Standard instruments themselves are not EPIs, rather, they are a blueprint of what an EPI should contain, including directions as to whether a particular provision is mandatory or optional once the standard instrument is adopted.
As at December 2008, only one standard instrument has been gazetted, which is for local environmental plans:8 see para 3.2 below for more information.
2.3 Inconsistency between EPIs
Where two EPIs are inconsistent (eg a LEP is inconsistent with a SEPP), the following rules apply (unless the EPI states otherwise):9
A SEPP prevails over a REP or a LEP, and
A REP prevails over a LEP.
2.4 Challenging an EPI in the Land and Environment Court
Any person can challenge the legal validity of an EPI in the Land and Environment Court (Class 4).10 Any legal challenge to the validity of an EPI must be commenced in the Court within 3 months of the date of the publication of the LEP or SEPP in the NSW Government Gazette.11
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 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.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [1], although provisions not yet commenced as at 10 December 2008.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [2], [10], [37].
EPA Act, s 26, 30.
EPA Act, s 29 – 31.
EPA Act, s 4 (Definitions – “deemed environmental planning instrument); Miscellaneous Acts (Planning) Repeal and Amendment Act 1979.
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reforms) Act 2005, Sch 2: came into force on 16 June 2005.
EPA Act, s 33A, 33B.
Standard Instrument (Local Environmental Plans) Order 2006, published in NSW Government Gazette, No 42, 31 March 2006, p 1879; EPA Act, s 33A(2), 65(1A).
EPA Act, s 36; but see uncommenced amendments to section 36(a) in the EPA Amendment Act 2008, Sch 1.2 [17].
