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The information in this fact sheet is up-to-date as of April 2012.

2.1 LEPs and SEPPs (continued)

2.1.3 Local environmental plans (LEPs)

How can I find out which LEPs and SEPPS apply? (planning certificates)

A site can be covered by more than one EPI (LEPs 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 prescribed application fee for a planning certificate is $53.1 Planning certificates are usually included in contracts for the sale of land, or contracts to obtain finance, to show the prospective purchaser (or bank) what they can do with the land.

LEPs apply either to the whole, or part of, a local government area. LEPs divide the area they cover into "zones", such as rural, residential, industrial, public recreational, environmental conservation, and business zones.

For each zone, a LEP will give a list of "objectives" that indicate the principal intended use for that zone. Each zone also lists the types of development within that zone that are:

  • Permissible without development consent,
  • Permissible with development consent, and
  • Prohibited.

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 for more information on the zones.

How are LEPs prepared?

In 2008 the EPA Act was amended and this has fundamentally altered the process for making LEPs.2 (Note: this Fact Sheet will focus on the new process for making LEPs). All existing LEPs will continue in force until repealed and reviewed in order to facilitate the implementation of the Standard Instrument.3

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. That process has now been repealed and replaced with a new process, known as the 'gateway process' for making LEPs.4

What is a spot rezoning?

A spot rezoning aims to increase the development potential of a site. Spot rezonings occur where a 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.

Click here to access the criteria

The introduction of Part 3A of the Act (now repealed) meant that the power to initiate rezoning of an area sat not only with council but with the Minister for Planning. This is because it gave the Minister the power to approve developments regardless of existing local planning controls.

Part 3A's replacement, State Significant Development (SSD) and State Significant Infrastructure (SSI), continues to give the Minister for Planning and Infrastructure the power to approve spot rezoning regardless of local planning controls.

The process for carrying out a spot rezoning is the same as for making an LEP (see below).
New planning authorities

The entire process for making LEPs is now controlled by the Planning Minister (or a delegate). Prior to the 2008 amendments, Councils were responsible for initiating new LEPs or amending LEPs. Now that role can be delegated to other bodies, known as "relevant planning authorities".5 The relevant planning authority is the body that is charged with preparing a new LEP.6 It will often be the local council but in some cases this role may be delegated to a Joint Regional Planning Panel or the Director General of Planning.7

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:8

  • 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.9
  • The planning proposal is then given to the Planning Minister.10
  • The Planning Minister then makes a "gateway determination" as to whether the planning proposal should proceed to the next stage (with or without variation).11

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 (e.g. environmental studies), or that the developer pays the costs of the authority.12

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.13 A planning proposal can be withdrawn at any time.14

Minister makes "gateway determination"

After receiving an initial planning proposal to make an LEP or for a spot rezoning, the Planning Minister must decide whether the planning proposal should proceed, and if so, on what conditions. This is called a "gateway determination".15

In making a gateway determination, the Planning Minister can decide the following things:16

  • Whether the planning proposal should proceed;
  • Whether the planning proposal should be resubmitted;
  • What community consultation is required, if any (see paragraph below);
  • Whether any consultation is required with State or Commonwealth public authorities;
  • Whether a public hearing must be held into the planning proposal by the Planning Assessment Commission or other body; and
  • The timeframe for completing the process.

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.17

Community consultation

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.18 The Planning Minister decides whether or not any community consultation is required for making the LEP.19 Any community consultation requirements that the Minister determines must be carried out. The relevant planning authority only needs to consider any submission made during community consultation to satisfy the requirement.20

If the Planning Minister does decide that community consultation is required, then the process is as follows:21

  • The relevant planning authority must make the 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.22 Further community consultation is not required following a variation unless the Minister directs.23

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.24 It is up to the relevant planning authority to decide whether or not to hold a public hearing, based on whether it thinks the issues raised in the submission are significant enough to warrant the hearing.25 It may also hold a public hearing on any issue without a submission requesting one is held.26

The report from any public hearing must be given to the relevant planning authority, which can choose whether or not to make the report publicly available.27

The relevant public authority must consider all written submissions and the report of any public hearing.28

Consultation with OEH 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 planning proposal, the planning authority who is making the plan (the Minister, Director-General, local council or other delegate), must consult with the Director-General of OEH.29

Minister can ask Planning Assessment Commission to review process

The Planning Minister can also direct the Planning Assessment Commission or a Joint Regional Planning Panel to review a planning proposal at any time if there has been a delay in the matter being finalized, or for any other reason that the Minister thinks appropriate.30

Department of Planning will draft LEPs

Local councils will no longer draft LEPs. Rather, the drafting will be done by the Parliamentary Counsel in consultation with the planning authority, under the direction of the Director-General.31 The planning proposal sets out the intention of the planning authority and the Parliamentary Counsel must give effect to that intention in drafting the LEP. Once the LEP has been drafted it is then given to the Planning Minister.32

Planning Minister makes final decision on LEP

The Planning Minister makes the final decision as to whether to make a new LEP or not.33 The Minister can choose to include or exclude the variations submitted by the relevant planning authority in consultations, or can refer it back to the relevant planning authority for reworking.34

Environmental assessment of new LEPs

Before the 2008 Amendments, local councils had to prepare environmental studies before preparing new LEPs. However, there is no longer a mandatory process for environmental assessments to be done for new LEPs, or for spot rezonings.

Standard Instrument for preparing LEPs

For more information on the gateway process, see Fact Sheet 2.1.3(a) The New LEP Making Process

A new Standard Instrument for LEPs was published on 31 March 2006 which prescribes the form and content of LEPs throughout NSW.35

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, 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.36

The Department of Planning and Infrastructure has revised the timeline for Councils to complete LEPs and adopt the standard instrument. Note: In upgrading their LEPs to the new standard instrument, some local councils have followed and will be following the old process for making LEPs, not the gateway process outlined above. This is because they commenced the process before the new process came into effect.37

Obligation to disclose political donations

For more information on the standard LEP instrument, see Fact Sheet 2.1.3(b) The Standard Instrument.

Developers must disclose political donations and gifts when making any planning application.38

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.39

Developers seeking an amendment of a 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 prior to the application or request being made and ending when the application is determined.40 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.41

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 of making the donation.42

Both the Department of Planning and Infrastructure and local 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.43

Click here to go to see the NSW Department of Planning's policy on donation and gift disclosure.

  1. Environmental Planning and Assessment Regulation 2000, cl 259.
  2. EPA Act, ss 33A-36.
  3. EPA Act, ss 33A-36.
  4. EPA Act, Division 4.
  5. EPA Act, ss 54-55.
  6. EPA Act, s 55.
  7. EPA Act, s 54.
  8. EPA Act, s 53-60.
  9. EPA Act, s 55.
  10. EPA Act, s 56.
  11. EPA Act, s 56.
  12. EPA Act, s 58.
  13. EPA Act, s 58(2).
  14. EPA Act, s 58(4).
  15. EPA Act, s 56.
  16. EPA Act, s 56.
  17. EPA Act, s 56(8).
  18. EPA Act, s 56(2)(c).
  19. EPA Act, s 56(2)(c).
  20. EPA Act, s 57(8).
  21. EPA Act, s 57.
  22. EPA Act, s 58.
  23. EPA Act, s 58(3).
  24. EPA Act, s 57(5)(a).
  25. EPA Act, s 57(5)(b).
  26. EPA Act, s 57(6).
  27. EPA Act, s 57(7).
  28. EPA Act, s 57(8).
  29. EPA Act, ss 34A, 57(2)(d).
  30. EPA Act, s 56(5).
  31. EPA Act, s 59(1).
  32. EPA Act, s 59(2).
  33. EPA Act, s 59(2).
  34. EPA Act, ss 59(2), (3).
  35. Standard Instrument (Local Environmental Plans) Order 2006, Standard Instrument—Principal Local Environmental Plan .
  36. EPA Act, s 33A, Standard Instrument (Local Environmental Plans) Order 2006, (cl 4).
  37. EPA Regulation 2000, cl 12(2).
  38. EPA Act, s 147.
  39. EPA Act, ss 147(2), (3).
  40. EPA Act, ss 147(4), (5).
  41. EPA Act, s 147(3).
  42. EPA Act, s 147(6).
  43. EPA Act, s 147(12).

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