EDO NSW Fact Sheet 2.1.5 LEPPS and SEPPS - State Environmental Planning Policies

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2.1.5 State environmental planning policies (SEPPs)

State Environment Planning Policies (SEPPs) are environmental planning instruments which address planning issues within the State.

The practical effect of a SEPP is often to take power away from local councils in order to prohibit certain types of development in an area. Other SEPPs make the Planning Minister the decision-maker (consent authority) for certain types of high-impact development, or development in sensitive areas.

There are currently about 40 SEPPs in NSW. All existing SEPPs continue in force, despite the 2008 Amendments.1

5.1 Examples of SEPPs

This Policy enables the flexible interpretation of development standards in LEPs. For example, if a developer's proposal meets the objectives of an LEP, but not some of the standards set by the LEP, such as the floor space ratio or height restrictions, they can apply for an exemption from those standards (SEPP 1 objection).2

However, the new Standard LEP Instrument now sets out the circumstances when a development standard in an LEP or SEPP can be varied,3 and once a council adopts the new standard LEP, SEPP 1 will cease to apply in that local government area. The Planning Department 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. It also makes minor development which is auxiliary to existing development, such as fences for existing houses, permissible without consent.

This Policy provides additional protection for coastal wetlands by requiring development consent to be obtained before any clearing, draining, filling or construction of levees can take place on a mapped wetlands. These developments will also require an EIS and the concurrence (agreement) of the Director-General of DECCW before consent can be granted. See Fact Sheet 5.5 on Coastal Protection for more information.

This Policy seeks to protect coastal rainforests (littoral rainforests) by requiring development consent for development in or adjacent to mapped coastal rainforest areas. An EIS and the concurrence (agreement) of the Director-General of DECCW may also be required under this Policy.

This Policy contains additional requirements before development consent can be granted for hazardous and offensive industries. For example, the development must carry out a preliminary hazard analysis, and the consent authority must consider additional matters.

This Policy seeks to protect koala habitat by requiring a plan of management for all developments in core koala habitat, and by encouraging core koala habitat to be included in environment protection zones in LEPs.

Case study: Nambucca Valley Conservation Association Inc v Nambucca Shire Council & Anor

The Nambucca Valley Conservation Association Inc (NVCA) has commenced proceedings in the Land and Environment Court challenging the decision of Nambucca Shire Council to allow a rural residential development to proceed in core koala habitat. In its 26 years as a community association, this is the first time that the NVCA has decided to initiate legal proceedings.

The NVCA's concerns include the incremental loss of koala habitat and the impact on koala ‘corridors' as a result of the proposed development; the refusal of Council to carry out the necessary public exhibition of the amended proposal; and the timing and manner in which the Council made its decision.

This Policy seeks to protect land in the coastal zone by identifying State significant development in the coastal zone, requiring certain development applications to carry out development in sensitive coastal locations to be referred to the Director-General of DECCW for comment, and requiring some subdivisions in the coastal zone to have master plans.

This SEPP repealed 20 other SEPPs4 which largely dealt with category-specific State infrastructure (eg prisons, tips, educational facilities), and replaced them with a single, comprehensive SEPP to facilitate the development of State infrastructure. The new Policy deals with a wide range of State infrastructure, such as telecommunications facilities, sewerage works and storm water management, and specifies when development consent is (and is not) required for such development to be carried out in certain zones.

This Policy identifies the types of development to which the development assessment and approval process under Part 3A of the EPA Act applies. The Policy also makes the Planning Minister the approval authority for these developments and for sites of State significance.

5.2 How is a new SEPP made?

The Planning Minister makes SEPPs.6 Prior to the 2008 Amendments, a SEPP could only be made if it related to a matter “of significance for environmental planning for the State”. The 2008 Amendments removed this requirement and a SEPP can now be made “for the purpose of environmental planning by the State”: note as at 10 December 2008, this provision was uncommenced.7

Under the 2008 Amendments, there are no mandatory public consultation requirements which must be met before a SEPP is made. The new process under the amendments allows the Planning Minister to publicise an explanation of the intended effect of a proposed SEPP, and to seek and consider public submissions, but only if the Minister so chooses.8

The 2008 Amendments establish special consultation procedures concerning threatened species. If threatened species, populations, ecological communities or their habitats will or may be adversely affected by the SEPP, then the Director-General of the Department of Planning must consult with the Director-General of DECCW.9