EDO NSW Fact Sheet 2.2 Development applications & consents -

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2.2.4 Categories of development

The procedures for applying for development consent, the level of environmental assessment required, the notification required and appeal rights, differ depending on how a development is categorised.

It is therefore important to establish at the outset which category or categories of development an application falls into. Some of these categories can overlap. For example, a development could be categorized as both integrated development and advertised development, or as designated development and integrated development.

4.1 Complying development

An EPI (a LEP or SEPP) can identify some development to be “complying development'.1 This category is intended to apply to fairly routine types of development, such as extensions to a dwelling, or the construction of a swimming pool.

For example, the Sutherland Shire LEP 2006, allows a complying development certificate for dwelling houses which are single story, under 5.4 metres, and set back at least 0.9 metres from the boundary. Other examples of complying development include: front fences, so long as they are less than one metre in height; and garden sheds, so long as they are under 40 sq metres.2

The NSW Housing Code provides for many aspects of minor residential development to be processed as complying development.

One of the main purposes of the Code is to standardize 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.

If a development is categorized as “complying development”, then the standard development application process will not apply to that development. Instead, complying developments can be approved by a complying development certificate, which is a simpler and faster process (7 days) than development consent.3 A complying development certificate can be issued by either a council or an accredited certifier.

Before work commences on site, the developer must apply to either the council or to a private accredited certifier for a complying development certificate, who is then responsible for assessing the development application. The council or certifier decides whether the development complies with all development standards applying to the development and either issues (or refuses) the certificate.4 The certificate must be issued before work commences.

The council or accredited certifier cannot refuse to issue a certificate if the proposed development meets the prescribed development standards, and the certificate must be either issued or refused within 7 days.5

The council must be notified at least 2 days before work begins under a complying development certificate.6

A council must publicly advertise all applications for a complying development certificate in accordance with the public notification rules for complying development in the council's development control plan.7

4.2 Designated development

“Designated development” refers to developments which are high-impact developments (eg likely to generate pollution), or which are located in or near an environmentally sensitive area (eg a wetland).

There are two ways a development can be categorized as “designated development”:9

Examples of designated development under the EPA Regulation 2000 include chemical factories, large marinas, quarries and sewerage treatment works.

The local council will usually be the consent authority for designated development, unless:

After receiving a DA for designated development, the consent authority must forward it and a copy of the EIS to the Director-General of the Department of Planning, or to the council (if the council is not the consent authority).12

New Infrastructure Laws for NSW

In March 2009, the Nation Building and Jobs Plan (State Infrastructure Delivery) Act 2009 passed through NSW parliament. The implications of this Act are very significant. The Act applies to infrastructure projects identified as critical through the COAG (Council of Australian Governments) funding process.

Part 5 of the Act allows the new Coordinator General to make an order by writing that the Environmental Planning and Assessment Act (EPA Act) does NOT apply to such projects. Additionally, the Act cannot be prohibited by a Local Environment Plan, it cannot be assessed under Part 5 of the EPA Act and it cannot be declared as a Part 3A project. Alternatively, authorisation is sought from the Coordinator-General who may, upon approval of the project, attach conditions (including environmental protection). He/she may specify public notification requirements once authorisation is given.

There is no scope for public submissions or public participation prior to an authorisation being granted and there are no appeal rights to authorisation.

If a DA falls within the category of designated development, then, as soon as practicable after receiving the DA, the consent authority must:13

The written notice to other landowners must contain a range of things, including a description of the proposed development, when and where the DA can be inspected, how submissions can be made, and the person's appeal rights.18

Note: A submission by way of objection should set out the grounds for the objection.20

The consent authority must take submissions which are made during the public submission period into account in deciding whether to approve the DA.21

A consent authority can choose to dispense with the need to readvertise and renotify if a DA is amended, substituted, or withdrawn and replaced.22

4.3 Integrated development

Integrated development refers to a development which, in addition to development consent, requires one or more additional environmental approvals before it can proceed.23

Integrated development is development which, as well as development consent, requires on or more of the following types of approvals:24

The purpose of the integrated development provisions is to streamline the approvals process, and to avoid duplication and conflicting decisions, where more than one decision-maker is involved in approving a development.

For integrated development, the normal assessment and notification procedures are followed, but the consent authority must also ask the authority responsible for giving the other approval in advance whether it will consent to the proposal, and if so, on what terms.25

The consent authority must not impose any conditions which are inconsistent with those indicated by the other approval authority.26 If the approval authority indicates that it will not grant approval (eg if the EPA says it will not grant a pollution licence), the consent authority must refuse the development consent.27

A DA for integrated development must be publicly notified in the same way as for advertised development, but only if the DA requires an approval under the Heritage Act 1977, the Water Management Act 2000 or the Protection of the Environment Operations Act 1997 (pollution licence):28 see para 4.4 below on advertised development.

All other types of integrated development (eg those which require a permit under the Fisheries Management Act 1994, or a section 90 permit to destroy Aboriginal objects or places under the NPW Act), are non-advertised development must be publicly advertised if and as required under the relevant DCP.29

Categorization of a development as “integrated development” does not affect an applicant's (or an objector's) appeal rights.30

4.4 Advertised development

Certain types of development can be declared to be “advertised development”, the effect of which is to impose additional public notification requirements on all development applications which fall within this.31

The advertised development provisions can therefore overlap with other categories of development, such as non-designated development, integrated development and complying development, but do not apply to designated development or to State significant development (because these have their own processes for public notification).32 32">

Apart from additional advertising and public notification requirements, the approval process for advertised development remains the same as for other non-designated development.

The EPA Regulation 2000 identifies the following types of development as advertised development:35

If a development falls within the category of advertised development, the consent authority must give written notice, as soon as practicable after receiving the development application, by:36

The notice must include a range of things, including the address of the land, the name of the applicant, a description of the proposed development, details of where the DA can be viewed, and state whether the development requires a species impact statement.37 A local council can choose not to readvertise and renotify a DA which is amended or substituted.38

During that time, any person can inspect the DA and accompanying information and make extracts or copies from them. A submission by way of objection must set out the grounds of the objection.40

The consent authority must take these public submissions into account in deciding whether to approve the DA.41

4.5 Non-designated, non-advertised development

There is no specific term for development that does not fall under either the non-designated or non-advertised categories of development – it is simply known as development.

The EPA Act does not have specific requirements for notification of development that is not advertised or designated development.

However, many councils will have either a development control plan or policy which sets out when people must be notified of development, such as where neighbours are likely to be affected. Where such a DCP exists, public notification of a development is mandatory under the EPA Act.42

In addition, if a council has a notification policy which it regularly observes (as opposed to a DCP), the Land and Environment Court has held that this may give rise to a legitimate expectation that the policy will be followed.43 By contrast, the Court has found that informal notification policies, such as those which depend upon the council deciding whether a person might be affected or not, are not legally enforceable.44

Case Study: Reasonable expectation of development consent notification

Lesnewski v Mosman Municipal Council [2005] NSWCA 99

Mrs Lesnewski brought Class 4 proceedings in the Land and Environment Court, seeking a declaration that the development consent given by Mosman Municipal Council to her neighbours, Mr Robert and Mrs Carol Wright be dismissed.

The Council had adopted a development control plan under s72 of the EPA Act regarding notification requirements. Mrs Lesnewski alleged she did not receive the copy of the plans nor were they made available for inspection, as required under the DCP. She claimed a denial of procedural fairness and natural justice.

Section 79A(2) EPA Act provides:

"A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application."

Tobias JA found that ‘in any event a breach of s 79A(2) does not necessarily lead to the conclusion that there has been a denial of procedural fairness'. He also found that ‘it would be a matter for argument as to whether the failure to comply with one or more of those items would result in a denial of procedural fairness. It is well established that the content of the duty to afford procedural fairness depends on the circumstances of the case'.

The court also held that Mrs Lesnewski's challenge to the consent's validity on the basis that she was denied procedural fairness, was not covered by s 101 [stating that where public notice has been given in accordance with the regulations, the validity of the consent cannot be challenged in legal proceedings], and that the primary judge [in the Land and Environment Court] erred in finding to the contrary. The case was referred back to the Land and Environment Court and was settled before the hearing date.

Members of the public are entitled to go to council offices to inspect development applications free of charge (except for internal residential plans) and have a right to make copies of those documents for a reasonable photocopying charge.45

4.6 Part 3A Major projects

In 2005, the EPA Act was amended to create a new category of development known as “Part 3A Major projects”. The Planning Minister is the consent authority for these projects.46

The Part 3A provisions are used to assess and approve large public and private projects, such as new mines, transport developments and pipelines. They also apply to projects which are declared by the Minister to be a “critical infrastructure project”. The Part 3A Major projects category has replaced the former category known as “State Significant Development”.

This fact sheet does not deal with Part 3A projects. For more information on how Part 3A Major Projects are assessed, approved and can be appealed, see Fact Sheet 3.3 on Part 3A Projects.