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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

2.2.6 How is a development application considered?

Once a DA has been lodged and the environmental assessment and public participation procedures are completed, the consent authority (decision-maker) can consider the application.

2.2.6.1 Who is the "consent authority"

In most cases the consent authority will be the local council.

However, the EPA Act, the regulations, or an EPI (LEP, REP or SEPP) can specify a different consent authority, such as:1

• the Planning Minister
• the Planning Assessment Commission
• a joint regional planning panel, or
• a public authority (other than the council).

If the consent authority is the local council, it is the elected councilors who will make the decision, although sometimes the councilors may delegate power to determine certain standard or non-contentious applications to the general manager or another council officer.2

2.2.6.1.1 Minister can appoint planning assessment panels

Under reforms made to the EPA Act in 2008, the Planning Minister can appoint a planning assessment panel or joint regional planning panel to exercise a council's functions as a consent authority to decide on development applications under the EPA Act.3

The Minister can make the appointment if the Minister is of the opinion that a council has failed to comply with its obligations under the EPA Act, or has demonstrated unsatisfactory performance in dealing with planning matters.4

2.2.6.2 Consent authority decides whether to approve or refuse consent

The consent authority (decision-maker) decides whether to grant or refuse consent.

When deciding on a development application, the consent authority must take into consideration the matters listed in section 79C(1) of the EPA Act, which include:

• The provisions of any SEPP, REP, LEP or DCP
• Any draft environmental planning instrument which has been placed on public exhibition
• Any planning agreement5
• Any additional matters set out in the Regulations, such as the NSW Coastal Policy and the need for fire safety,6
• The likely impacts of the development, including the impacts on the natural, built, social and economic environment
• The suitability of the site for the development
• Any public submissions made in accordance with the legislation, and
• The public interest.

2.2.6.2.1 Council can appoint a panel of experts

To assist it in assessing a DA, a local council can establish an independent hearing and assessment panel (panel of experts) to review any aspect of a DA (or any planning matter).7 A council must appoint a panel of experts if environmental planning instrument (LEP, REP or SEPP) requires it to do so.8

The panel can receive or hear submissions from interested persons and must then report to the council.9 The council must provide staff and facilities for the panel.10

2.2.6.3 The Planning Assessment Commission

2.2.6.3.1 Commissions of Inquiry abolished

The EPA Act used to allow the Planning Minister of Director-General of Planning to call a Commission of Inquiry into a broad range of planning and development matters.11 A Commission of Inquiry was a public hearing which would consider the merits of a development proposal, hear public submissions, and report to the Planning Minister or Director-General.

However, amendments made to the EPA Act in 2008 abolished Commissions of Inquiry and replaced them with the Planning Assessment Commission and Joint Regional Planning Panels, both of which can hold public hearings.

2.2.6.3.2 Minister can delegate decisions to Commission

The newly created Planning Assessment Commission (Commission) commenced operation on 1 October 2008. It was established through amendments inserted into the EPA Act.12

The Commission provides the Planning Minister with the option to refer developments to an external panel of decision makers (ie the Commission) to either review the environmental impacts of a development, or in some cases, to decide whether to approve the development. In practice, the Commission will act as consent authority for approximately 80 percent of projects currently determined by the Planning Minister.

The Planning Assessment Commission is independent and is not subject to the direction or control of the Minister (except in relation to procedure).13 It cannot employ any staff, but can arrange through the Director-General to use government staff, local council staff, or to engage its own consultants.14 Local councils are legally obliged to assist the Commission, and to pay its costs.15

• Click here to go to the NSW Department of Planning website on the Planning and Assessment Commission, which includes a list of the appointed members.

The Minister can ask the Commission to act in the following circumstances:

• Part 3A projects: To review or determine for Part 3A project applications or concept approvals,16
• Part 4 developments: where a local council is the consent authority, to review any aspect of a DA, (whether or not it is designated development),17 or
• Part 5 activities: to review any environmental aspects the activity.18

The Minister can also ask the Commission to carry out any function of a regional panel, an independent hearing and assessment panel or a planning assessment panel.19

2.2.6.3.3 Delegation of some Part 3A projects

On 18 November 2008, the Planning Minister issued an Instrument of Delegation delegating the Minister's powers to approve Part 3A projects to the Commission in some cases, eg where a project has been the subject of a political donation, or if the project will take place within the Minister's electorate.

• Click here to view the Instrument of Delegation

2.2.6.3.4 Public hearings

The Commission must conduct a public hearing:20

• If requested to do so by the Planning Minister, or
• If the review concerns a Part 4 or Part 5 development which is likely to involve the need for a water approval under the Water Management Act 2000.

There are no merit appeals against approvals given by the Commission or the Planning Minister if the Commission's review of the application involved a public hearing.21

2.2.6.3.5 Commission gives report to Minister

Once the Commission has completed is review, it must provide a final report to:22

• the Minister
• such other persons as the Minister may direct
• such other persons as the Commission thinks fit
• the relevant consent authority, and
• any public authority whose concurrence is required.

The Director-General of Planning must make all reviews and reports by the Commission available on its website.23

2.2.6.4 Joint regional panels

2.2.6.5 Consultation and concurrence

The EPA Act or an EPI (LEP or SEPP) can require a consent authority to either consult with, or obtain the concurrence (agreement) of, another person before they can approve a DA.24 This might be the Planning Minister, another government Department, or the Environment Minister if the development will affect threatened species.

For example, DAs which are likely to significantly affect threatened species cannot be approved without the concurrence (agreement) of the Director-General of National Parks and Wildlife (unless a biobanking statement has been issued).25

A person whose concurrence is required has the power to either approve or refuse the DA, or to impose additional conditions on the development.26 A DA which is granted without concurrence (where concurrence is required) is void.27

2.2.6.5.1 SEPP (Repeal of Concurrence and Referral Provisions) 2008

On 15 December 2008, a new SEPP was passed, called SEPP (Repeal of Concurrence) 2008 which modified or removed many (but not all) referral and concurrence provisions within LEPs, REPs and SEPPs. Approximately 203 LEPs have been affected, 19 REPs, and 7 SEPPs.28 The objective of the SEPP is to remove duplication of assessment processes, and, in response, to add to the matters which council's must take into account when considering development applications. The SEPP had not commenced as at 1 January 2009.

• Click here to view the Department of Planning Circular (12 December 2008) on SEPP (Repeal of Concurrence and Referral Provisions) 2008

1. EPA Act, s 4(1) (Definitions) "consent authority".
2. Local Government Act 1993, s 377(1).
3. EPA Act, Div 1AA, s 117C - 118AG.
4. EPA Act, s 118(1).
5. EPA Act, s 93F - 93L.
6. EPA Regulation 2000, cl 92(1), 93.
7. EPA Act, s 23I.
8. EPA Act, s 23I(2).
9. EPA Act, s 23I(4).
10. EPA Act, s 23I(6).
11. EPA Act, s 119 (now repealed).
12. EPA Act 2008, ss 23A - 23F, Sch 3; EPA Regulation 2000, cll 269O - 268W.
13. EPA Act, s 23B(3).
14. EPA Act, s 23D(4).
15. EPA Act, s 23N, 23O.
16. EPA Act, s 23D(1)(a).
17. EPA Act, s 23D(1)(b)(iii).
18. EPA Act, s 23D(1)(b)(iv).
19. EPA Act, s 23D(1)(c).
20. EPA Regulation 2000, cl 268R(1), 268T.
21. EPA Act, s 23F(2); EPA Regulation 2000, 78(1)(j).
22. EPA Regulation 268V.
23. EPA Act, s 268V(4); EPA Regulation 2000, cl 8G(4)(e).
24. EPA Act, s 79B.
25. EPA Act, s 79B(3).
26. EPA Act, s 79B(8), (9).
27. EPA Act, s 79B(10).
28. Department of Planning Circular, 12 December 2008, PS 08 - 015.