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

2.1.5 Other planning documents

2.1.5.1 Development control plans

The EPA Act allows a local council or the Director-General of Planning to make development control plans (DCPs). DCPs deal with particular aspects of LEPs in more detail than the LEP.

For example, a DCP can:2

  • impose additional requirements (to those under the EPA Act) as to when a development application must be advertised or publicly notified (e.g. to neighbours) by declaring something to be 'advertised development'.3
  • can provide for (or exclude) the need to advertise or publicly notify particular types of development (other than designated development or advertised development).
  • can specify additional criteria that a council must consider when assessing a development application.

Unlike LEPs and SEPPs, DCPs are not environmental planning instruments 4 and are not legally binding. However, a consent authority must take a DCP into account when considering a development application.4 LEPs and SEPPs take priority over a DCP.5

The process for making and approving DCPs, including the requirements for public exhibition, is set out in the EPA Regulation 2000.6 The Planning Minister can direct a local council to make, amend or revoke a DCP.7

DCPs can be viewed at your local council, and will generally be available on the council website.8

Councils must review DCPs once new principal LEP made

All local councils must remake their LEPs in accordance with a Standard LEP Instrument (see above). Once a local council has adopted a new principal LEP they must also review and remake their existing DCPs with a view to ensuring that only one council-made DCP and one Minister-made DCP applies to each site.9

Click here to go to the Department of Planning Circular (30 September 2005) on how the 2005 Amendments affect LEPs and DCPs.

2.1.5.2 Section 117 Directions

Section 117 of the EPA Act empowers the Planning Minister to give directions to a particular council, or to all councils generally, as to what they must include in their LEPs.10 Councils must give effect to these directions when preparing draft LEPs in response to the Standard LEP Instrument.11

Click here to go to the Department of Planning's website on local environmental plan directions (s 117 Directions).

2.1.5.3 Planning circulars, practice notes and guidelines

The Department of Planning issues planning circulars, practice notes and guidelines. These are not legally binding, but they provide practical guidance to councils on how to interpret and implement the EPA Act.

Click here to go to the Department of Planning's list of planning circulars, practice notes and guidelines.

LEPs and development applications

If you are concerned about a particular development proposal, the individual development application may often not be the real problem. For example, you may be concerned about the appropriateness of the type of development which is permitted by the local environmental plan, not the quality of the particular development application itself. If so, this is a zoning problem.

To respond to this problem, you can:

  • Lobby your local council, or the Planning Minister, to rezone the land. Run a community campaign to raise awareness of the issue and build community support for your position. Support your arguments with evidence about the environment, social or economic benefits of rezoning.
  • Check that the development application has correctly described the proposal. A developer cannot get consent for something that would otherwise be prohibited by labeling the proposal as if it were a permitted one. Get legal advice if you doubt the description given in a development application.
  • Check that the LEP was correctly made. An LEP that is not made in accordance with the procedural requirements set out in the EPA Act may be invalid. You will need to act quickly if you propose to take legal action, because the validity of an EPI cannot be challenged more than three months after the LEP is published in the Government Gazette. 12

 

  1. EPA Act, ss 74B - 74F; EPA Regulation 2000, cls 16, 21, 24.
  2. EPA Act, s 74C(1)(b), (c) and (d).
  3. EPA Act, s 74C(b), (c).
  4. EPA Act, s 4(1) definitions 'environmental planning instrument'.
  5. EPA Act, s 79C(1)(a)(iii). See also Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 (3 August 2009) in which the Court held that although DCPs are not 'determinative' a DCP must be considered as a 'fundamental element' or a "focal point" of the s79C process. This arguably means that councils must show actual application of the DCP and its standards and need to provide clear justification for departing from the DCP in relation to a particular development.
  6. EPA Act, s 74C(5).
  7. EPA Act, s 74E(1); EPA Regulation 2000, cl 18 - 21A.
  8. EPA Act, s 74F(1).
  9. EPA Act, s 74E(4); EPA Regulation 2000, cl 25AC.
  10. EPA Act, s 74C(2), (4), (5), s 74E(2); DIPNR Circular - PS 05 - 008, 30 September 2005, p 6.
  11. EPA Act, s 117(3); Section 117 Ministerial Directions issued 30 September 2005.
  12. EPA Act, s 35.

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