2.2.2 When is development consent required?

Under the threefold classification imposed by the EPA Act, all development will fall into one of the following three categories:

• Development that does not need consent
• Development that needs consent
• Development that is prohibited.

The EPA Act does not specify when development consent is needed. Instead, you need to look at the relevant EPI (either the LEP, and any relevant SEPP) to find out which of the three categories a particular type of development falls into: for more information on EPIs, see Fact Sheet 2.1 on LEPs and SEPPs.

2.2.2.1 Development that does not need consent

An EPI (eg a LEP or a SEPP) can provide that specific types of development can be carried out without development consent.1 These will usually be minor, low-impact, or routine forms of development which are typical of what already exists in the zone (eg farming in an agricultural zone).

However, even if a development does not need development consent, it may still need other forms of approval, such as:

• a construction certificate
• an occupation certificate for a residential building, or
• environment assessment (eg an EIS) and approval under Part 5 of the EPA Act (unless it is a Part 3A project (see Fact Sheet 2.3) or exempt development: see paragraph 2.1.2 below).2

2.2.2.1.1 LEPs can provide for development without consent

To find out whether a particular development needs consent, you should look first at the zoning tables in an LEP. For example, most zones in the Sutherland Shire LEP 2006 allow bush fire hazard reduction work to be carried out without consent.3

In addition to the zoning tables, you should also look to see whether there are any specific provisions in the LEP exempting certain types of development from the need to obtain development consent. For example, clause 30 of the Sutherland Shire LEP 2006 allows a public authority to carry out maintenance dredging in tidal waterways without consent, despite consent being required in the zoning tables.

2.2.2.1.2 Exempt development

A LEP or SEPP can also "exempt" particular types of development from the need for development consent.4 This is known as "exempt development". Exempt development can only be declared for developments which are of minimal environmental impact.

One of the major advantages of having something declared as exempt development is that, unlike development which is characterized as "permitted without consent", exempt development is not subject to the environmental assessment and approval processes under Part 5 of the EPA Act.5

A LEP or SEPP which allow for exempt development can provide that these developments must also meet certain standards (eg maximum height standards) in order to be carried out as "exempt" development. For example, the Sutherland Shire LEP allows cabanas and gazebos which will be under 10m2, and which will not exceed 4 metres in height, to be built as exempt development (thus avoiding the need for development consent) (see LEP for details).6

SEPPs can also specify categories of exempt development, with the three main SEPPs being:

• SEPP 4-Development Without Consent and Miscellaneous Exempt and Complying Development (SEPP 4) which declares certain types of development to be "exempt development", such as minor subdivision (eg boundary adjustments), minor alterations to a building, filming, rainwater tanks and satellite TV dishes.7 These developments can proceed without development consent, despite what might be required under the relevant LEP,8 and
• SEPP 60 - Exempt and Complying Development which applies where a LEP has not already made provision for exempt development. The SEPP specifies a list of developments which are exempt in Schedule 3,9
• SEPP (Infrastructure) 2007 which declares certain types of development which are carried out by or on behalf of public authorities to be exempt development (see Schedule 1),10 and
• SEPP (Exempt and Complying Development Codes) 2008 which contains a list of exempt (and complying) development in relation to minor alterations and modifications to houses.

SEPP 4 overrides any provisions to the contrary in an LEP,11 whereas SEPP 60 can be overridden by a later SEPP or LEP, if the EPI so states.12

Exempt development cannot be carried out:13

• on habitat which has been declared as critical habitat for threatened species: see Fact Sheet 6.1, or
• in a wilderness area: see Fact Sheet 6.3 on Protected Areas.

2.2.2.1.3 NSW Housing Code 2008 and exempt development

The NSW Housing Code provides for many aspects of minor alterations and modifications to residential development to be processed as exempt development. The Code also contains a complying development code for housing.

One of the main purposes of the Code is to standardize exempt and complying development codes for housing development across NSW.

The NSW Housing Code has been introduced through a new SEPP, called SEPP (Exempt and Complying Development Codes) 2008. The SEPP was gazetted on 12 December 2008 and will commence on 27 February 2009.

2.2.2.1.4 Development by public authorities

Many activities of public authorities don't require development consent. The LEP might not require consent, or the public authority might be allowed to carry out the development without consent under SEPP (Infrastructure) 2007. The aim of this SEPP is to facilitate the delivery of infrastructure across NSW.

Accordingly, the SEPP identifies an extensive list of infrastructure projects which public authorities can carry out without consent, such as building some elements of developments air transport facilities, correctional facilities, educational establishments, electricity transmission and distribution networks, gas pipelines and telecommunications facilities.

Note however, that these developments will still be subject to the environmental assessment and approval processes under Part 5 of the EPA Act (unless they are a Part 3A project or exempt development): see below on Part 5.

2.2.2.2 Development that needs consent

The EPA Act does not set out when development consent is required. Rather, EPIs (LEPs and SEPPs) set out when development consent is needed.

The EPA Act provides that if an EPI provides that development consent is required, a person must not carry out the development unless they:14

• have obtained such a consent, and
• carry out the development in accordance with the consent and with any additional provisions in the LEP or SEPP.

A simpler and faster alternative to obtaining development consent is for the developer to obtain a complying development certificate, if the EPI allows: see below.

Development consents are issued by the consent authority. In most cases, this will be the local council. However a SEPP can specify a different consent authority, which will often be the Planning Minister.

2.2.2.2.1 LEPs

To find out if development needs consent, you should look first at the zoning tables in the relevant LEP. Each zone will contain a heading which specifies what type of consent is permitted with consent.

2.2.2.2.2 SEPPs can specify that development needs consent

A SEPP can also specify when development consent is required, and this can override a LEP which permits such development.15

For example:

• SEPP 14 - Coastal Wetlands requires all developments on mapped coastal wetlands which will clear, drain or fill the wetland to have development consent.16
• Similarly, SEPP 62 - Sustainable Aquaculture requires pond-based and tank-based aquaculture to have development consent,17 and
• SEPP (Infrastructure) 2007 contains an extensive list of developments, which, if carried out by or on behalf of a public authority, require development consent.

2.2.2.2.3 Complying development can replace need for DA

The EPA Act allows some types of minor development which would usually need development consent to be approved by a complying development certificate instead.18 The purpose of the complying development provisions is to allow a faster and simpler alternative for minor developments to be approved (7 days), compared to the process for obtaining development consent.19

To find out whether a particular development is categorized as complying development, you will need to look at:

• the relevant LEP which will set out what is complying development in that local government area, and
• any relevant state environmental planning policies (SEPPs) (see below).

Note: an LEP cannot declare something to be complying development if the development:20

• is designated development
• requires the concurrence (agreement) of another authority
• is on land which is critical habitat
• is in a wilderness area
• is environmental heritage, or
• is on environmentally sensitive land.

SEPPs can declare certain things to be complying development, with the two main SEPPs being:

• SEPP 4-Development Without Consent and Miscellaneous Exempt and Complying Development (SEPP 4), and
• SEPP 60 - Exempt and Complying Development which applies where a LEP has not already made provision for complying development. The SEPP sets out a list of developments which are complying development in Schedules 4 and 5,21 along with a list of mandatory conditions which must be attached to complying development certificates (Schs 7 and 8).

See paragraph 3.2 for more information on complying development.

2.2.2.3 Prohibited development

2.2.2.3.1 LEPs and SEPPs can prohibit development

The EPA Act itself does not expressly prohibit any particular types of development. Rather, the Act allows LEPs and SEPPs to specify the types of development which are prohibited in any given zone.22

Prohibited development will therefore vary from zone to zone, and between local government areas, depending on the LEP. For example, a LEP might prohibit hazardous industry within an environmental management zone, but it is permitted within a heavy industrial zone.

If an LEP provides that a certain type of development is prohibited in a zone, this will usually mean that the consent authority cannot approve that kind of development in that zone (unless there is an exception which applies: see 2.3.2 below).

SEPPs can also prohibit development, and can override a LEP which permits that type of development.23 For example, SEPP 50 - Canal Estate Development prohibits canal estate developments from being built anywhere in NSW, regardless of whether they are permitted under a LEP.24

A person must not carry out development on land if it is prohibited.25 A council can give an order to a person who is using premises for a prohibited purpose to stop using them.26

2.2.2.3.2 Exceptions which can allow prohibited development

There are two ways that development which is prohibited under an LEP can still proceed:

• where a SEPP specifically overrides the LEP, and
• where permission is granted to override a development standard.

The first exception is where a SEPP specifically overrides a prohibition in a LEP, thus allowing prohibited development to be approved.27 For example, SEPP (Housing for Seniors or People with a Disability) 2004 makes housing for people over 55 or people with a disability permissible in zones where this type of housing is otherwise expressly prohibited under an LEP.28

The second type of exception is where an LEP prohibits development based on the size, location or other characteristics of the development, and the consent authority grants an exemption from the need to meet those standards. This can occur where an LEP does not involve a total prohibition of a certain type of development, but instead prohibits developments which are over a certain size, height or density. These requirements are known as "development standards".29

State Environmental Planning Policy No 1 - Development Standards (SEPP 1) allows a consent authority to approve a development which fails to meet a development standard in an LEP (eg the building exceeds the height limit for the zone) if the developer lodges an objection with their development application that compliance with the standard is unreasonable or unnecessary in the circumstances (known as a "SEPP 1 objection").30 The consent authority can grant development consent if it is satisfied that the objection is well-founded, and if the Director-General also grants concurrence (agreement).31

The provisions of SEPP 1 have now been largely incorporated into the Standard LEP Instrument. All local councils must prepare a new principal LEP for their local government area in accordance with the Standard LEP Instrument by 31 March 2011 at the latest.32 Once an LEP has been prepared in accordance with the Standard LEP Instrument, SEPP 1 will cease to apply to that council area and development standards in that council area can will only be able to be varied in accordance the new LEP clause.

1. EPA Act, s 76(1).
2. EPA Act, s 76(3(b).
3. Sutherland Shire LEP 2006, cl 11.
4. EPA Act, s 76(2).
5. EPA Act, s 76(3)(b).
6. Sutherland Shire LEP 2006, cl 12, Sch 2 "Cabanas or gazebos".
7. SEPP 4, cl 5A - 12, and 14 - 17.
8. SEPP 5, cl 5.
9. SEPP 60, cl 6, 7.
10. SEPP (Infrastructure) 2007, cl 20, Sch 1.
11. SEPP 4, cl 5.
12. SEPP 60, cl 5.
13. EPA Act, s 76(3).
14. EPA Act, s 76A.
15. EPA Act, s 30(1)(b); 36(1)(a).
16. SEPP 14 Coastal Wetlands, cl 7.
17. SEPP 62 Sustainable Aquaculture, cl 7.
18. EPA Act, s 76A(2)(b).
19. EPA Act, s 84A(5).
20. EPA Act, s 76A(6).
21. SEPP 60, cl 8, 9.
22. EPA Act, s 4 (Definitions), 31, 76B.
23. EPA Act, s 31, 76B.
24. SEPP 50 - Canal Estate Development, cl 5.
25. EPA Act, s 76B
26. EPA Act, s 121B.
27. EPA Act, s 36(1)(a).
28. SEPP (Housing for Seniors or People with a Disability) 2004, cl 2(2)(a), 5(3), 15, 16.
29. EPA Act, s 4(1) definition "development standards".
30. SEPP 1, cl 6.
31. SEPP 1, cl 7, 8.
32. Standard Instrument (Local Environmental Plans) Order 2006, established the Standard Instrument - Principal Local Environmental Plan, Part 4 Principal Development Standards, cl 4.6.

This site was last updated Thursday 17 May, 2012
EDO NSW
Home | Disclaimer | Privacy | Contact Us | Support Us

This site was last updated Thursday 17 May, 2012
EDO NSW
Home | Disclaimer | Privacy | Contact Us | Support Us