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Prior to the 2008 Amendments to the EPA Act, local environmental plans (LEPs) were developed by local councils. LEPs divide the area they cover (the whole or part of a local government area) into “zones”, such as rural, residential, industrial, recreational, open space, environment protection and business zones.
For each zone, a LEP will usually give a list of “objectives” in relation to each zone, and will also list the types of development within that zone that are:
Permissible without (development) consent
Permissible with (development) consent, and
Prohibited (prohibited development).
To work out whether a particular development is permitted within a particular area, you should contact the local council to find out how the area is zoned under the LEP. You can either view the LEP on the council's website, or look at it over the counter. 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, scenic protection and environmental protection: see paragraph 3.2 on the Standard Instrument below.
How can I find out which LEPs and SEPPS apply? (planning certificates)
A site can be covered by more than one EPI (LEPs, REPs and SEPPs). To find out all the EPIs which affect a site, you can either work it out yourself (by looking at all the EPIs), or obtain a certificate from the local council which tells you which EPIs apply. These certificates are called “planning certificates”, or “Section 149 certificates” (because they are issued under s 149 of the EPA Act).
The standard application fee for a planning certificate is $40. Planning certificates are usually included in contracts for sale of land, or contracts to obtain finance, to show the prospective purchaser (or bank) what they can do with the land.
3.1 How are LEPs prepared?
The 2008 Amendments to the EPA Act has fundamentally altered the process for making LEPs. (Note: this Fact Sheet will focus on the new process for making LEPs, although as at 10 December 2008, the provisions of the Environmental Planning and Assessment Amendment Act 2008 regarding LEPs have not yet commenced.)1 All existing LEPs will continue in force.2
Under the old system, a local council initiated the decision to have a LEP or to engage in a spot rezoning by preparing a draft LEP, with the Planning Minister having the final say as to whether to approve the LEP.3 The existing provisions for making LEPs have now been repealed and replaced with a new process.4
What is a spot rezoning?
A spot rezoning aims to increase the development potential of a site. Spot rezonings occur where a local environmental plan (LEP) is amended, usually in response to a particular development. Initially under the EPA Act, only a council could initiate a spot rezoning. To prevent undue influence within local government regarding specific development proposals, councils now must ensure the draft LEP that will constitute a spot rezoning meets certain criteria set out by the Department of Planning.
The introduction of Part 3A of the Act now means that the power to initiate rezoning of an area sits not only with council but with the Minister for Planning. This is because it gives the Minister the power to approve development regardless of existing planning controls such as zoning.
The process for carrying out a spot rezoning is the same as for making an LEP (see below).
3.1.1 Planning Minister controls LEP process
Under the 2008 Amendments, the entire LEP process is controlled by the Planning Minister.
LEPs are made by the Planning Minister, although the Minister can delegate this responsibility to the Director-General of DECCW or to another person or body (relevant planning authority).5The Minister can choose to amend a LEP on his or her own initiative.
3.1.2 Planning proposals given to Minister
Once Planning Minister has specified who the relevant planning authority is, the process of making a LEP is as follows:6
The relevant planning authority must prepare a “planning proposal” which explains the intended effect of the new LEP and the justification for it, including any relevant maps showing the intended rezoning, and the details of how the authority proposes to carry out community consultation
The planning proposal is then given to the Planning Minister
The Planning Minister then makes a “gateway determination” as to whether the matter should proceed or not (with or without variation).
If the owner of land (a developer) requests a rezoning, the relevant planning authority can agree to embark upon the rezoning process by preparing a planning proposal on condition that the developer either carry out studies for the proposal (eg environmental studies), or that the developer pays the costs of the authority.7
The relevant planning authority can vary a planning proposal at any time during the LEP process, but must give the varied proposal to the Planning Minister.8 A planning proposal can be withdrawn at any time.9
3.1.3 Minister makes “gateway determination”
After receiving an initial planning proposal to make an LEP or for a spot rezoning, the 2008 Amendments allow the Planning Minister to decide whether the matter should proceed, and if so, on what conditions. This is called a “gateway determination”. 10
In making a gateway determination, the Planning Minister can decide the following things: 11
Whether the matter should proceed
Whether the matter should be resubmitted
What community consultation is required, if any (see para below)
Whether any consultation is required with State or Commonwealth public authorities
Whether a public hearing must be held into the matter by the Planning Assessment Commission or other body
The timeframe for completing the process
Who will decide on the final LEP, the Minister or the relevant planning authority.
Failure to comply with the requirements set out in the Minister's gateway determination will not invalidate an LEP, unless the failure relates to community consultation requirements. 12
3.1.4 Community consultation
Under the 2008 Amendments, the Planning Minister decides, as part of the Minister's gateway determination, what sort of community consultation is required for making an LEP or spot rezoning. 13 Indeed, the Planning Minister can decide that the matter does not require any community consultation. 14 The EPA Regulations can set out standard community consultation requirements. 15
If the Planning Minister does decide that community consultation is required, then the process is as follows: 16
The relevant planning authority must make the revised planning proposal publicly available during the period of community consultation. A summary is permitted for detailed provisions
During the period of community consultation, any person can make a written submission to the relevant planning authority (remembering that the planning authority cannot vary those parts of the LEP which are mandatory under the Standard LEP Instrument)
The relevant planning authority can choose whether to make the submissions available to the public.
The relevant planning authority can vary a planning proposal at any time during the LEP process, but must give the varied proposal to the Planning Minister. 17 Further community consultation is not required following a variation unless the Minister directs.
3.1.5 Any person can request a public hearing
A person who makes a written submission can request that the planning authority arrange a public hearing on the issues raised in their submission. 18 It is up to the planning authority whether to have a public hearing. The authority can choose to hold one if it thinks that the issues raised in the submission are of sufficient importance.
The report from the public hearing must be given to the relevant planning authority, which can choose whether to make the report publicly available. 19
The relevant public authority must consider all written submissions and the report of any public hearing. 20
3.1.6 Consultation with DECCW where threatened species affected
After the gateway decision is made for an LEP to proceed, there are special consultation procedures concerning threatened species. If threatened species, populations, ecological communities or their habitats will or may be adversely affected by the plan, the planning authority who is making the plan (the Minister, Director-General, local council or other delegate), must consult with the Director-General of DECCW. 21
3.1.7 Minister can ask Planning Assessment Commission to review process
The Minister can also direct the Planning Assessment Commission or a joint regional planning panel to review a LEP proposal at any time, particularly if there has been a delay in the matter being finalised. 22
3.1.8 Department of Planning will draft LEPs
Local councils will no longer draft LEPs. Rather, the drafting will be done by the Department of Planning after the planning proposal has completed the public consultation process, and the draft LEP is then given to the Planning Minister. 23
3.1.9 Planning Minister makes final decision on LEP
The Minister makes the final decision on whether to make a new LEP or not. The Minister can vary the draft LEP which the relevant planning authority submitted to the Minister, or can refer it back to the relevant planning authority. 24
3.1.10 Is environmental assessment of new LEPs required?
No. Before the 2008 Amendments, local councils had to prepare environmental studies before preparing new LEPs. However, under the 2008 Amendments, there is no mandatory process for environmental assessment to be done for LEPs, or for spot rezonings.
3.2 Standard Instrument for preparing LEPs
On 16 June 2005, the EPA Act was amended to allow the Planning Minister to issue a standard form LEP for the purpose of standardizing LEPs across NSW.25 Accordingly, a new Standard Instrument for LEPs was published on 31 March 2006 which prescribes the form and content of LEPs throughout NSW.26
Since 31 March 2006, all local councils are required to prepare a new principal LEP for their local government area in accordance with the standard LEP instrument which the NSW Government has issued. The standard LEP instrument contains standard definitions, zones, clauses and land-use tables as well as a standard format.
The instrument sets out some provisions which are mandatory in an LEP, and others which are optional. All new LEPs must adopt the mandatory provisions of the standard LEP instrument before they can be publicly exhibited or recommended for gazettal.27
Councils have until 31 March 2011 to adopt the standardized format.
On 1 October 2008, new provisions came into effect in the EPA Act requiring developers to disclose political donations and gifts when requesting an amendment to an LEP or DCP.28
Under the new laws, the obligation to disclose applies not only to all development applications, but also to all formal requests to the Planning Minister, a council or the Director-General of the Department of Planning to initiate the making of an environmental planning instrument or development control plan
Under the new laws, developers seeking an amendment of an LEP or DCP by a local council must disclose all donations of $1,000 or more and any gifts which have been made to any local councilor (including when they were a candidate) or employee of that council within 2 years before the application or request is made and ending when the application is determined.29 Where the request is made to the Planning Minister or Director-General of Planning, all political donations of $1,000 or more must be disclosed.30
Disclosure must be made in a statement accompanying the request. If the donation or gift is made after the application or request is made, the developer must lodge a statement with the decision maker within 7 days.31
Both the Department of Planning and councils must make any disclosures publicly available, either on the internet or under arrangements posted on the internet, within 14 days of the disclosure being made.32
Click here to go to a NSW Department of Planning circular on disclosing political donations.
EPA Amendment Act 2008, Sch 1.1 [11] repealed Part 3, Div 4 of the EPA Act which related to the making of LEPs and replaced it with a new division.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [4], [11]; EPA Act, s 24(2)(b), 53, 54, 59.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1[11]; EPA Act, s 55.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11], EPA Act, s 54(3).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 58.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 58(4).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1[56]; EPA Act, s 56.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 56(2).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 56(8).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 56(2)(c).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 56(3).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 56(4).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 57.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 58.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 57(5) – (6).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 57(7).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 57(8).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [7]; EPA Act, (new) s 34A.
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 56(5).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 59(1).
Environmental Planning and Assessment Amendment Act 2008 No 36, Sch 1.1 [11]; EPA Act, s 59(2).
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reforms) Act 2005 ; EPA Act, s 33A.
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).
