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2.2 Development applications and consents

2.2.1	Overview
2.2.2	When is a development consent required?
2.2.3	How is a development application made?
2.2.4	Categories of development
2.2.5	Environmental impact assessment
2.2.6	How is a development application considered?
2.2.7	Post-consent provisions
2.2.8	Appeals

2.2.4. Categories of development

The procedures for applying for development consent, the level of environmental assessment required, the notification required and appeal rights, differ depending on how a development is categorised.

By way of example:

• for  complying development , a very simple assessment process is followed and a private certifier can approve the development;1
• for  designated development , an environmental impact statement will be required and third parties must be notified and can appeal against a decision to grant consent;2
• for  integrated development , approval will need to be obtained from other public authorities (e.g. the EPA) before consent can be granted;3 and
• for  advertised development , the consent authority will have to give the public notice of the development application.4

It is therefore important to establish at the outset which category or categories of development an application falls into. Some of these categories can overlap. For example, a development could be categorized as both integrated development and advertised development, or as designated development and integrated development.

The different categories of development are described below. For more information, visit the Department of Planning and Infrastructue's website .

2.2.4.1 Complying development

An EPI (a LEP or SEPP) can identify some development to be ‘complying development'.5  This category is intended to apply to fairly routine types of development, such as extensions to a dwelling, or the construction of a swimming pool.

For example, Warringah Local Environmental Plan 2011 allows a complying development certificate for garages which are set back at least 4.5 metres from the side boundaries, at least 6 metres from the rear boundary, and at least 6.5 metres from the front boundary, and meet other specified guidelines.6

2.2.4.1.1 NSW Housing Code 2008

The NSW Housing Code provides for many aspects of minor residential development to be processed as complying development.

The NSW Housing Code applies to residential developments including:

• Detached single and double storey dwellings
• Home extensions, and
• Other related development, such as swimming pools.

One of the main purposes of the Code is to standardize complying development codes for housing development across NSW.

The NSW Housing Code was introduced through the  SEPP (Exempt and Complying Development Codes) 2008 . For more information, visit the Department of Planning's NSW Housing Code website .

2.2.4.1.2 Complying development certificates

If a development is categorized as ‘complying development', the standard development application process will not apply to that development. Instead, complying developments can be approved by a complying development certificate, which is a simpler and faster process (10 days) than development consent.7  A complying development certificate can be issued by either a council or an accredited certifier.8

Before work commences on site, the developer must apply to either the council or to a private accredited certifier for a complying development certificate, who is then responsible for assessing the development application. The council or certifier decides whether the development complies with all development standards applying to the development and either issues (or refuses) the certificate. 9 The certificate must be issued  before  work commences.

The council or accredited certifier cannot refuse to issue a certificate if the proposed development meets the prescribed development standards, and the certificate must be either issued or refused within 10 days.10 For more information about the issuing of complying development certificates, visit the Department of Planning's NSW Housing Code website .

The council must be notified within 2 days after the date of the determination under a complying development certificate issued by a private certifier.11

2.2.4.1.3 Public participation

Councils or private certifiers are not required to advertise applications for a complying development certificate, however they are required to advertise their determination of applications for a complying development certificate by publishing a public notice in a newspaper describing the land subject to the certificate. This notice must state that the determination is available for public inspection, free of charge, during ordinary office hours at the council's offices.12

2.2.4.2 Designated development

‘Designated development' refers to developments which are high-impact developments (e.g. likely to generate pollution), or which are located in or near an environmentally sensitive area (e.g. a wetland). Designated development does not include State significant development.13

If a development application is categorized as designated development, the application:

• must be accompanied by an environmental impact statement (EIS)14 (see below for more information);
• will require public notification;15 and
• can be the subject of a merits appeal to the Land and Environment Court by objectors.16

2.2.4.2.1 How is a development categorized as designated development?

There are two ways a development can be categorized as ‘designated development':17

• The class of development can be listed in Schedule 3 of the  EPA Regulation 2000  as being designated development;18  or
• a LEP or SEPP can declare certain types of development to be designated.19

Examples of designated development under the EPA Regulation 2000 include chemical factories, large marinas, quarries and sewerage treatment works. For the Regulation's full list of designated developments, read Schedule 3 of the EPA Regulation .

The local council will usually be the consent authority for designated development, unless:

• the development is SSD or SSI or is an existing project to which Part 3A of the EPA Act applies, in which case the Planning Minister or the PAC under delegation will be the consent authority; or
• a SEPP declares someone other than the council to be the consent authority, such as the Planning Minister.

After receiving a DA for designated development, the consent authority must forward the application and a copy of the EIS to the Director-General of the Department of Planning and Infrastructure (if the Minister or the Director-General is not the consent authority) or to the council (if the council is not the consent authority).20

2.2.4.2.2 Public notification and submissions

If a DA falls within the category of designated development, then, as soon as practicable after receiving the DA, the consent authority must:21

• place the DA and any accompanying information on public exhibition for a period of at least 30 days (the "submission period")22
• publish notice of the DA in a local newspaper23
• exhibit notice of the DA on the land to which the DA relates24
• give written notice to any other public authorities which may be interested in the DA,25  and
• give written notice to:
• persons who own or occupy adjoining land, and
• if practicable, to any other people who own or occupy land the use or enjoyment of which may be detrimentally affected by the development.

The written notice to other landowners must contain a range of things, including a description of the proposed development, when and where the DA can be inspected, how submissions can be made, and the person's appeal rights.26

During the submission period, any person can:

• inspect the DA and accompanying information,27
• make extracts from or copies of them,28 and
• make a written submission.29

Note: A submission by way of objection should set out the grounds for the objection.30

The consent authority must take submissions which are made during the public submission period into account in deciding whether to approve the DA.31

A consent authority can choose to dispense with the need to readvertise and renotify if a DA is amended, substituted, or withdrawn and replaced.32

2.2.4.3 Integrated development

Integrated development refers to a development which, in addition to development consent, requires one or more additional approvals before it can proceed.33

2.2.4.3.1 Additional approvals which trigger integrated development provisions

Integrated development is development which, as well as development consent, requires on or more of the following types of approvals:34

• A permit (aquaculture, dredging, removing marine vegetation, or to alter a waterway) under the  Fisheries Management Act 1994
• Approval under the  Heritage Act 1977
• Approval to erect improvements within a mine subsidence district
• A mining lease under the  Mining Act 1992
• Consent to destroy aboriginal relics under s 90 of the  National Parks and Wildlife Act 1974
• Production lease under the  Petroleum (Onshore) Act 1991
• A pollution licence under the  Protection of the Environment Operations Act 1997
• Consent to alter a public road under the  Roads Act 1993
• Bush fire safety authorisation under the  Rural Fires Act 1997
• An approval under the  Water Management Act 2000 .

The purpose of the integrated development provisions is to streamline the approvals process, and to avoid duplication and conflicting decisions, where more than one decision-maker is involved in approving a development.

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.35

The consent authority must not impose any conditions which are inconsistent with those indicated by the other approval authority.36  If the approval authority indicates that it will not grant approval (e.g. if the EPA says it will not grant a pollution licence), the consent authority must refuse the development consent.37

2.2.4.3.2 Public notification of application and submissions

A DA for integrated development must be publicly notified in the same way as for advertised development, but only if the DA requires an approval under the  Heritage Act 1977 , the  Water Management Act 2000  or the Protection of the Environment Operations Act 1997  (pollution licence):38  see paragraph 2.2.4.4 below on advertised development.

All other types of integrated development (e.g. those which require a permit under the  Fisheries Management Act 1994 , or an Aboriginal Heritage Impact Permit to destroy Aboriginal objects or places under s 90 of the National Parks and Wildlife Act 1974 ), are non-advertised development must be publicly advertised if and as required under the relevant DCP.39

Categorization of a development as "integrated development" does not affect an applicant's (or an objector's) appeal rights.40

2.2.4.4 Advertised development

Certain types of development can be declared to be "advertised development", the effect of which is to impose additional public notification requirements on all development applications which fall within this.41

The advertised development provisions can therefore overlap with other categories of development, such as non-designated development, integrated development and complying development, but do not apply to designated development or to State significant development (because these have their own processes for public notification).42

Apart from additional advertising and public notification requirements, the approval process for advertised development remains the same as for other non-designated development.

2.2.4.4.1 What is advertised development?

Advertised development can be identified under:

• The EPA Regulation (see below)
• An EPI (LEP or SEPP),43  or
• A development control plan.44

The  EPA Regulation 2000  identifies the following types of development as advertised development:45

• Integrated development, if it requires an approval under the  Heritage Act 1977 , the  Water Management Act 2000  or the  Protection of the Environment Operations Act 1997  (pollution licence) (called "nominated integrated development");
• Development affecting threatened species which requires a species impact statement; and
• Development that is Class 1 aquaculture under  SEPP 62 - Sustainable Aquaculture .

2.2.4.4.2 Public notification of application and submissions

If a development falls within the category of advertised development, the consent authority must give written notice, as soon as practicable after receiving the development application, by:46

• publishing a notice in a local newspaper;
• giving written notice to a person who owns or occupies adjoining land; and
• giving written notice to other public authorities that may have an interest in the DA.

The notice must include a range of things, including the address of the land, the name of the applicant, a description of the proposed development, details of where the DA can be viewed, and state whether the development requires a species impact statement.47 The notice should also state that any person may make a written submission about the DA to the decision maker. A local council can choose not to readvertise and renotify a DA which is amended or substituted.48

After notification takes place, the public has:

• 14 days within which to inspect the DA and supporting documentation and to make written submissions to the consent authority; or
• 30 days if the DA relates to:
• integrated development which requires a heritage, water, or pollution approval), or
• development affecting threatened species which requires a species impact statement.

During that time any person can inspect the DA and accompanying information and make extracts or copies from them. A submission objecting to the development must set out the grounds of the objection.49 To read more about access to information, read our Fact Sheet .

The consent authority must take these public submissions into account in deciding whether to approve the DA.50

2.2.4.5 Non-designated, non-advertised development

There is no specific term for development that does not fall under either the non-designated or non-advertised categories of development - it is simply known as development.

2.2.4.5.1 Public notification requirements

The EPA Act does not have specific requirements for notification of development that is not advertised or designated development.

However, many councils will have either a development control plan (DCP) or policy which sets out when people must be notified of development, such as where neighbours are likely to be affected. Where such a DCP exists, public notification of a development is mandatory under the EPA Act.51

In addition, if a council has a notification policy which it regularly observes (as opposed to a DCP), the Land and Environment Court has held that this may give rise to a legitimate expectation that the policy will be followed.52 By contrast, the Court has found that informal notification policies, such as those which depend upon the council deciding whether a person might be affected or not, are not legally enforceable.53

Members of the public are entitled to go to council offices to inspect development applications free of charge (except for internal residential plans) and have a right to make copies of those documents for a reasonable photocopying charge.54 It is important to note the new guidance for councils about copyright and compliance with the Government Information (Public Access) Act 2009 . For more information, read our Fact Sheet , or read the information from Office of the Information Commissioner .

2.2.4.6 State Significant Development, State Significant Infrastructure, and Part 3A Major projects

The Planning Minister, or the Planning Assessment Commission under delegation from the Planning Minister, is the consent authority for these projects.55

The major project provisions are used to assess and approve large public and private projects, such as new mines, transport developments and pipelines. They also apply to projects which are declared by the Minister to be a critical infrastructure. Part 3A has been repealed and replaced by SSD and SSI, however existing Part 3A projects and modifications to these projects are still assessed under Part 3A transitional provisions.

This fact sheet does not deal with SSD, SSI, or Part 3A. For more information on how major projects are assessed, approved and can be appealed, read our Fact Sheet on SSD and SSI , or our  http://www.edo.org.au/edonsw/site/factsh/fs02_3_1.php .

1. EPA Act, ss 83A-83D.
2. EPA Act, ss 78A-81.
3. EPA Act, ss 90-93B.
4. EPA Act, ss 78A-81.
5. EPA Act, s 76A(5).
6. Warringah Local Environmental Plan 2011 , Schedule 3 Part 1.
7. EPA Act, s 77(b). EPA Regulation 2000 (Part 7), cls 125 - 137; Sch 1 (Part 2, cl 3 and 4) sets out the information to be included in an application for a complying development certificate, and the documents which must accompany one.
8. EPA Act, s 85A.
9. EPA Act, s 85A(1); EPA Regulation 2000 (Part 7), cls 125 - 137.
10. EPA Act, s 85A(7), (8); EPA Regulation, cl 130AA.
11. EPA Act, s 85A(11); EPA Regulation, cl 130(4).
12. EPA Act, s 101; EPA Regulation, cl 137.
13. EPA Act, s 77A.
14. EPA Act, s 78A(8)(a).
15. EPA Act, s 79(1).
16. EPA Act, s 98(1).
17. EPA Act, s 77A.
18. EPA Regulation, cl 4.
19. EPA Act, s 29.
20. EPA Regulation, cl 50(6).
21. EPA Regulation, cl 50(6).
22. EPA Regulation, cl 79.
23. EPA Regulation, cl 80.
24. EPA Regulation, cl 79.
25. EPA Regulation, cl 77.
26. EPA Act, s 79; EPA Regulation, cl 78.
27. EPA Act, s 79(4).
28. EPA Act, s 79(4).
29. EPA Act, s 79(5).
30. EPA Act, s 79(5).
31. EPA Act, s 79C(1)(d).
32. EPA Act, s 79(6).
33. EPA Act, s 91.
34. EPA Act, s 91.
35. EPA Act, s 91A(2), EPA Regulation, cl 66, 70.
36. EPA Act, s 91A(3).
37. EPA Act, s 91A(4).
38. EPA Regulation, cl 5(1)(b).
39. EPA Act, s 74C(1)(c)(i).
40. EPA Act, s 93B.
41. EPA Act, s 79A(1).
42. EPA Act, s 29A.
43. EPA Act, s 29A.
44. EPA Act, s 74C(1)(b).
45. EPA Regulation, cl 5.
46. EPA Regulation, cls 87, 88.
47. EPA Regulation, cl 89.
48. EPA Regulation, cl 90.
49. EPA Regulation, cl 91.
50. EPA Act, s 79C(1)(d).
51. EPA Act, s 79A.
52. Somerville v Dalby (1990) 69 LGRA 422.
53. Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86.
54. EPA Regulation, cl 56.
55. EPA Act, Parts 3A, 4.1 and 5.1.

EDO NSW

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