© 2007 Environmental Defender's Office (Ltd) NSW
The information contained in this fact sheet is current as at 18 October 2006.
The principal law regulating land use in New South Wales is the Environmental Planning and Assessment Act 1979. The Act is administered by the Minister for Planning (the Minister).
Environmental planning under the New South Wales Environmental Planning and Assessment Act 1979 refers to the process of developing plans to regulate competing land uses. This is achieved through the use of ‘environmental planning instruments'.
The Environmental Planning and Assessment Act establishes three types of Environmental Planning Instruments (EPIs):
The provisions of EPIs are legally binding on both government and developers. The full text of most EPIs is available online at: www.legislation.nsw.gov.au. In addition, most council's LEPs are available on their websites.
EPIs should set out an overall plan and vision for development into the future. They must set out aims and objectives designed to achieve any of the objects of the Environmental Planning and Assessment Act and policies and strategies for achieving those objects.
EPIs will usually provide a range of possibilities and constraints for development over the whole area to which the plan relates.
Certain planning instruments are 'deemed' to be Environmental Planning Instruments. These are planning instruments created before the commencement of the Environmental Planning and Assessment Act in 1979, such as 'planning scheme ordinances' or 'interim development orders'. They contain similar sorts of provisions to Environmental Planning Instruments.
On 16 June 2005 the Environmental Planning and Assessment Act 1979 was amended to provide for the standardisation of EPIs. The Minister is now able to prescribe the form and content of EPIs. A standard EPI is known as a ‘standard instrument'. Standard instruments themselves are not EPIs, rather they are a blueprint of what an EPI should contain. To date, only a standard instrument for Local Environmental Plans has been gazetted.
Local Environmental Plans
Local Environmental Plans (LEPs) are developed by local councils. LEPs divide the area they cover (Local Government Area) into ‘zones', such as rural, residential, industrial, recreational, environmental protection and business zones. The LEP usually gives a list of ‘objectives' in relation to each zone and a list of the types of development that are permissible without consent, permissible with consent, and prohibited in each zone.
To determine whether a development is permitted within a particular area, first contact the council to find out the zoning of the area under the LEP. 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, open space, conservation and environmental protection.
A number of EPIs may affect a given site. A certificate can be obtained from the local council telling you which EPIs apply. These certificates, called ‘section 149 certificates', are usually prepared for inclusion in contracts to sell land or obtain finance and cost about $40.
From 31 March 2006, LEPs are required to be prepared in accordance with the standard LEP instrument. The standard LEP instrument is a document prepared by the Department of Planning which prescribes the form and content of LEPs throughout New South Wales.
The standard LEP instrument contains standard definitions, zones, clauses and land-use table as well as a standard format which all local councils in New South Wales are required to adopt in a new principal LEP for their entire Local Government Area. Councils have 2 to 5 years from the date of the standard instrument coming into effect to adopt the standardised format. The standard LEP instrument prescribes mandatory and optional provisions. All LEPs are now required to incorporate the mandatory provisions of the standard LEP instrument before they can be publicly exhibited or recommended for gazettal.
Regional Environmental Plans
Regional Environmental Plans (REPs) are plans drafted by the Department of Planning (the Department) at the direction of the Minister or Director General of Planning (the Director General), and apply to a nominated ‘region', which may be smaller or larger than a single Local Government Area.
REPs can regulate any matter which the Minister believes is of environmental planning significance for the region.
For example, the State Government can use an REP to completely override controls in an LEP applying to an area, thereby substituting its own list of permissible and prohibited developments, or it may substitute the Minister for the local council as the consent authority in respect of certain types of development.
State Environmental Planning Policies
State Environmental Planning Policies (SEPPs) cover matters that the Minister believes are of environmental planning significance for the State. These policies may take many forms – they may facilitate development or provide increased planning protection in sensitive areas. They may apply generally across the State or apply to specific areas.
The practical effect of SEPPs is often to take power away from councils in order to prohibit certain types of development in that council's Local Government Area. Other SEPPs make the Minister the consent authority for certain types of high-impact development, or development in sensitive areas.
Examples of important SEPPs include:
This policy enables flexible interpretation of development standards. A developer may apply for consent if the objectives of an LEP are met, even though some standards set in the LEP are not met; for example, floor space ratio or height restrictions. The standard LEP instrument sets out the circumstances under which a development standard in an LEP or other EPI may be varied. Once an LEP has been implemented in accordance with the provisions of the standard LEP instrument, SEPP 1 will cease to apply to that council area. The Department's intention is to repeal SEPP 1 once all councils have adopted new LEPs using the standard instrument.
This policy permits certain development by public authorities without development consent, and also makes minor development which is auxiliary to existing development, for example fences on existing houses, permissible without consent.
This policy provides additional protection for coastal wetlands by requiring development consent to be obtained for the clearing, draining, filling or construction of levees on mapped coastal wetlands. These types of development will require both an Environmental Impact Statement and the concurrence of the Director General before approval can be granted.
This policy seeks to protect bushland in certain urban areas by restricting development in or adjacent to bushland reserves.
This policy seeks to protect coastal rainforests by requiring development consent for development in or adjacent to mapped coastal rainforest areas. An Environmental Impact Statement and the concurrence of the Director General may also be required under this policy.
This policy sets out additional requirements for assessment of the impacts of hazardous and offensive industries.
This policy seeks to protect koala habitat by requiring plans of management for development in core koala habitat and inclusion of core koala habitat in environment protection zones.
This policy provides for certain developments within the coastal zone or in certain sensitive coastal locations to be referred to the Director General, and also requires master plans for certain subdivisions within sensitive coastal locations.
For a full list of Environmental Planning Instruments, visit www.legislation.nsw.gov.au.
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:
You conclude that a warehouse, being commercial premises, is not permissible. Council could not lawfully approve a development application for a warehouse.
Development Control Plans and staged development applications
Development Control Plans (DCPs) deal with particular aspects of LEPs in more detail than the LEP; for example, a DCP may identify when development is required to be advertised or notified. DCPs are not legally binding. However, they must be taken into account when considering development applications. A DCP may cover a whole Local Government Area or a precinct or site within a Local Government Area. However, generally only one DCP may apply to the same land. The Environmental Planning and Assessment Act 1979 was amended in 2005 to provide that DCPs and staged development applications replace master plans. All existing master plans were deemed to be DCPs.
An EPI may require a DCP to be prepared by or on behalf of an owner of land before development on that land may be carried out. Any development to be carried out on the land must be consistent with the DCP. Where a DCP is required for a site by an EPI, a staged development application can be prepared as an alternative. A staged development application may set out an overview of a development proposal in relation to a site with details of each component of the development to be the subject of subsequent development applications. Alternatively, the first stage of a development application may include a concept for the entire site and a detailed proposal for the first stage of the development.
Section 117 directions and planning strategies
Section 117 of the Environmental Planning and Assessment Act 1979 empowers the Minister to give directions to a particular council or councils generally to require a draft LEP to include provisions that give effect to State planning aims, principles and policies. Councils are required to consider and give effect to the Minister's s. 117 directions in the preparation of draft LEPs in compliance with the standard LEP instrument.
The Department has recently introduced a number of strategic plans which councils are required to implement when preparing draft LEPs in compliance with the standard LEP instrument. These strategies include the Sydney Metropolitan Strategy, which includes plans for Sydney, the Central Coast and the Hunter region, as well as Regional Strategies for other parts of New South Wales. Councils are also encouraged to create their own strategic plans to implement State and regional planning priorities for their local areas.
Planning circulars
Circulars issued by the Department are not legally binding but they provide practical guidance to councils on how to interpret and implement the legislation.
When there is an inconsistency between Environmental Planning Instruments, there is a general presumption that SEPPs prevail over REPs and LEPs and REPs prevail over LEPs. If there is an inconsistency between two EPIs of the same type (such as two SEPPs), the more recent instrument usually prevails over an earlier instrument to the extent of any inconsistency, unless the SEPP states otherwise..
Local Environmental Plans are prepared by local councils, but the Minister for Planning has ultimate say as to whether a LEP is approved and comes into force. LEPs may relate to the whole or part of a Local Government Area.
Before drafting a new LEP, the council must prepare an environmental study, the purpose of which is to analyse the suitability of land for future development or for conservation. However, the need for an environmental study may be waived by the Director General for amendments to the principal LEP.
An environmental study will be required for an amendment to an LEP which involves the rezoning a particular site to enable previously prohibited development to proceed (known as 'spot re-zoning') where the re-zoning is inconsistent with a section 117 Ministerial direction. Developers can have development applications and spot rezoning proposals processed jointly.
After preparing a draft LEP, the council must submit it to the Department for a certificate allowing the draft to be exhibited. A certificate will not be issued to the council unless the Director-General is satisfied that the draft LEP has been prepared in accordance with the standard LEP instrument.
The council must then notify the public that a draft LEP has been made, and place it on exhibition for 28 days, during which time members of the public may make submissions. The council may hold a public hearing in respect of a submission made in relation the draft LEP if requested by a member of the public to do so and if the council considers that the submission warrants a public hearing. The Council then submits the draft plan, with details of submissions received, the report of any public hearing and any proposed alterations to the Department.
The final decision about whether to approve a draft LEP lies with the Minister. The plan can also be altered by the Minister, if he or she believes that issues of State or regional planning significance are at stake. The Minister may direct a council to re-exhibit wholly or in part a draft LEP that has been amended.
The Minister or Director General may make a draft Regional Environmental Plan with respect to any matter which is of significance for environmental planning in the region.
The Director General must notify affected councils that it proposes to prepare a draft plan, and he or she must prepare an environmental study for the affected area. An environmental study is not required if a REP is only being amended, unless the Minister directs to the contrary.
The draft plan is exhibited in the Department, and the public may make submissions. The Minister has final say as to whether the plan is approved.
The Minister or Director General may direct that a draft SEPP be prepared by the Department in relation to matters which are of environmental planning significance for the State.
There is no compulsory requirement for public notification of a draft SEPP, but the Minister may decide to advertise the draft plan and receive submissions.
The final decision whether to approve the plan as drafted by the Department, or with alterations, rests with the Minister.
Public participation in environmental planning processes plays a key role in promoting improved environmental, social and economic outcomes.
As discussed above, members of the community have formal opportunities to make written submissions in relation to Local Environmental Plans and Regional Environmental Plans and, in some cases, State Environmental Planning Policies.
Common concerns about Environmental Planning Instruments include:
Preparing an environmental study for a draft LEP or REP is only mandatory if the plan is the first to be made for the area, unless the Minister or Director General directs to the contrary. If a local environmental study is required, the Department can set guidelines for the preparation of the plan. Otherwise, it is up to council to decide what to include in the study. The current focus of the local planning system is to ensure that spot re-zonings and other changes to LEPs are justified in accordance with relevant local and State planning strategies and ministerial directions. Accordingly, spot re-zonings which are not compatible with an agreed planning strategy will usually need to be justified by an environmental study.
You should spell out the inadequacies of any environmental study in your submission on the draft LEP or REP. Remember that the environmental study is not an end in itself. Concentrate on the provisions of the draft plan, not on the study.
The Environmental Planning and Assessment Act 1979 states that the council must 'have regard to' any environmental study in preparing a draft LEP, but it does not require council to make the plan in accordance with the findings of an environmental study. You should point out any divergence between the study and the plan in your submission, but this would not provide a ground for a legal challenge unless it could be shown that the council did not consider the study at all when making the draft LEP.
If you are concerned about a development proposal, the individual development application will often not be the real problem.
For example, you may be concerned about the inappropriateness of the type of development permitted by the relevant Environmental Planning Instruments, not the quality of the particular development application. This is a zoning problem.
To respond to this problem, you can:
Land which is owned by or is under the control of a local council (with some exceptions, such as roads and crown reserves) must be classified as either ‘community land' or ‘operational land' under the Local Government Act 1993.
Community land will ordinarily be land which is open to the public, such as a park, bushland reserve or sportsground, while operational land may be held by a council as an asset or used for other purposes such as works depots or garages.
The purpose of the ‘community land' classification is to identify council-owned land which should be set aside for use by the general public.
What are the restrictions on community land?
There are a number of restrictions on the way councils can deal with community land:
Land may be classified as community land by a Local Environmental Plan or by resolution of the council. Land which is newly acquired by the council must be classified as community land or operational land by a council resolution within three months of acquisition, otherwise it becomes community land by default.
Normally, land can only be reclassified from community land to operational land by making a new LEP. The procedures for making an LEP must be complied with, including public exhibition of the plan and consideration of submissions from members of the public. The plan must be made by the Minister for Planning.
In addition, a public hearing must be held in relation to the reclassification proposal.
Where land has been dedicated to a council by a developer as a condition of development consent, it may be reclassified from community to operational land by resolution of the council, but only where council is satisfied that the land is unsuitable for the provision of public amenities or services.
Before such a resolution is passed, there must also be public notification, a public hearing, and an opportunity for members of the public to make submissions.
A local council must make a Plan of Management for every piece of community land in its area. A single Plan of Management can relate to one or more areas of community land.
Each plan must place the land to which it relates into one of five categories. These are:
Natural areas must be further categorised as bushland, wetland, escarpment, watercourse or foreshore.
The Local Government Act provides ‘core objectives' for the management of each of these categories of land. These objectives are in many cases quite restrictive and limit the type of activities for which the land may be used or leased.
For example, in relation to a natural area, the core objectives are:
The Plan of Management must also give objectives and performance targets for the land to which it relates, and the means by which the council proposes to assess its performance in managing the land.
Community land is still subject to zoning controls under the Environmental Planning and Assessment Act – Plans of Management and the requirements of the Local Government Act operate as additional controls on the land.
Plans of Management are drafted by the local council. Draft Plans of Management must be advertised and placed on public exhibition, giving the public an opportunity to make submissions.
A public hearing must be held if the plan would have the effect of re-categorising the land to which it applies (for example from ‘natural area' to ‘park'). After considering submissions from members of the public, the council may adopt a Plan of Management by resolution at a council meeting.
Once it is adopted, a Plan of Management may only be amended by making a new Plan of Management for the land.
A lease or licence can only be granted over community land for certain purposes which include:
Except for certain public utilities, underground pipes and filming projects, a lease or licence may only be granted if the Plan of Management expressly authorises the grant of a lease or licence for the purpose concerned, and only if the granting of the lease is consistent with the core objectives for that category of land.
The purposes for which land categorised as a natural area can be leased are much more restricted, with only very minor buildings and structures to be erected on such land.
The council must give public notice of a proposal to lease community land, including exhibiting notices on the land and notifying adjoining landowners, and must accept public submissions for a minimum 28-day period. In some cases, the Minister for Local Government may request that the council refer a proposed lease to the Minister for concurrence.
If a proposed lease is for a period of more than 5 years, it can only be granted by tender, unless granted to a non-profit organisation. If a person objects in writing to the granting of the lease, licence or other estate, the council must obtain the consent of the Minister before granting the lease.
Plans of Management for community land must be made available for inspection and sale at council offices. In addition, members of the public can inspect a register of land owned and controlled by the council.
As described above, the Local Government Act provides for public participation in the form of written submissions or public hearings in relation to proposals to re-classify community land, proposals to lease community land, and draft Plans of Management. The community may also influence council's decisions in relation to community land by lobbying elected councillors.
If a council fails to comply with the provisions of the Local Government Act or the Environmental Planning and Assessment Act in relation to community land, any person can bring proceedings in the Land and Environment Court to restrain a breach of either Act. You should seek legal advice before taking any court action.
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© 2007 Environmental Defender's Office (Ltd) NSW |
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