Environmental Law Handbook Example

CYANMAGENTAYELLOWBLACK • 27393 • UNSW Press • Environmental Law Handbook • 4th Edition • Farrier

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66 Planning instruments and land use

67 Understanding the process

70 Environmental planninginstruments

87 Plan-making

89 Case law: SEPPs and REPs

99 How to participate in plan-making

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THE ENV IRONMENTAL LAW HANDBOOK66

This chapter deals with the various strategiesfor land use planning, with the legislation andthe various planning instruments, and withthe relationships between these documents andthe types of provisions they contain. This isfollowed by a detailed discussion of the pro-cedures used to make them (see page 87).

PLANNING INSTRUMENTSAND LAND USE

Control of land use through planning instru-ments is a fundamental concept in the man-agement of the environment. There are twoaspects to controlling land use:• forward planning, which involves creating

planning instruments to control, regulateand guide future decision-making

• development control (sometimes calledproject control), where decisions are made(usually by the local council) with regardto these planning instruments.

This chapter deals with forward planning andthe environmental planning instruments (EPIs)made under the Environmental Planning andAssessment Act 1979 – that is, it deals with plansand plan-making. Chapter 5 deals with deci-sion-making in the development applicationprocess.

Other forms of planningIn addition to planning under EnvironmentalPlanning and Assessment Act, there are otherforms of planning that are dealt with in otherchapters. These include:• the reservation, dedication and management

of Crown Land for special uses, such asnational parks and state forests (dealt within chapters 4 and 12)

• cultural and natural heritage instruments andcontrols (dealt with in chapter 16)

• catchment management (dealt with inchapter 15).

Public participation inplan-makingThe law gives members of the public opportu-nities to participate in some forward plan-making. One of the best illustrations of theimportance of participation at the plan-makingstage is in reforms proposed at the time ofwriting (June 2005): it is proposed that land-use


3 : LAND USE PLANNING 67

issues be addressed at the forward planningstage rather than the development applicationstage. It is currently proposed that if local envi-ronmental plans (LEPs) receive biodiversity cer-tification, for example, there will be no needat the development application stage to:• satisfy the eight-part test (see page 243), or• obtain the concurrence of the Department

of Environment and Conservation withregard to threatened species.

UNDERSTANDINGTHE PROCESS

Legal status of planninginstrumentsEnvironmental planning instruments (EPIs)made under the Environmental Planning andAssessment Act are legally binding on anyoneapplying for development consent and on deci-sion-makers (usually the local council or theminister). Other documents, such as develop-ment control plans and council codes or poli-cies, are guideline documents. Because they arelegally binding, there have been a number ofcases on the meaning and interpretation ofEPIs (see page 89).

Land for recreation or effluent?

In 1991 Coffs Harbour City Council resolvedto construct an ocean outfall at Look At MeNow Headland to dispose of effluent. However,the EPI provided that the land would be usedfor recreational purposes. Coffs HarbourEnvironment Centre commenced proceedingsclaiming that the proposed sewer outfall wascontrary to the aims and objectives of thezone under the EPI. The NSW Court of Appealheld that the proposed development was notconsistent with the zoning objective and sowas prohibited under the EPI (Coffs HarbourEnvironmental Centre v Coffs Harbour CityCouncil 74 LGRA185).

CASE STUDY

The legislationUnderstanding the system requires knowledgeof both the pieces in the jigsaw puzzle andhow the pieces fit together. The planning instru-ment jigsaw puzzle comprises:• The Environmental Planning and Assessment

Act, particularly:– Part 3 (Environmental planning

instruments)



– Part 3A (Major infrastructure and otherprojects)

– Part 4 (Development assessment)– Part 4A (Certification of development)– Part 4B (Accreditation of certifiers)– Part 4C (Liability and insurance).

• the Environmental Planning and AssessmentRegulation 2000 made under the Act,which provides details of the requirementsset out in the legislation

• environmental planning instruments madeunder the Act

• guideline documents such as council codesand policies and development controlplans.

Zoning, developmentstandards and prohibitionsOne important way in which planning instru-ments regulate land is to zone land for dif-ferent purposes. Instruments have zoning tables,which specify whether particular uses are:• prohibited• permissible without consent• permissible with consent, usually of the

local authority• permissible with the consent of the local

authority and requiring concurrence(agreement) from some other authority(usually the minister).

Apart from zoning matters, other importantdecisions taken at the plan-making stage include:• reservation of land for open space

purposes and roads• commitments to carry out specific manage-

ment activities in management plans• setting out the circumstances in which

particular type of development (forexample subdivision) is permissible

• setting development standards and/orprohibitions on particular development oraspects of particular development, such as:– specifying minimum permissible lot

sizes for subdivision– setting maximum building heights

– setting foreshore building limits (see forexample Strange v Kiama MunicipalCouncil 132 LGERA 108).

Types of plansIn addition to the Act, there may be a numberof other instruments that set out what can andcannot be done when developing a particularsite. These may include:• state environmental planning policies

(SEPPs)• regional environmental plans (REPs)• local environmental plans (LEPs)• deemed EPIs• development control plans• council codes and policies• directions under sections 117(2) and 71 of

the Act• circulars from the Department of

Infrastructure, Planning and NaturalResources

• model provisions.

LEPs, REPs, SEPPs and deemed EPIs are collec-tively referred to as environmental planning instru-ments, or EPIs.

The provisions of EPIs are legally binding oncouncils and developers. Anyone may bring anaction to remedy or restrain a breach of an EPI(s.l23), and developers who do not comply withprohibitions in these documents risk criminalproceedings (s.l25).

Deemed EPIsIn some areas, the major local planningdocument is not an LEP but a planning schemeordinance or an interim development order.These were the planning instruments usedunder the old planning legislation – Part XIIA ofthe Local Government Act 1919 – which wasrepealed when the Environmental Planning andAssessment Act came into force. Under thatlegislation, planning scheme ordinances wereintended to be definitive documents; interimdevelopment orders were temporary measuresto fill the gap while a planning schemeordinance was being made or was suspended.



Many areas did not reach the stage ofhaving their own planning scheme ordinance,and some still operate under interimdevelopment orders. These ordinances andorders are deemed to be EPIs under theEnvironmental Planning and Assessment Act(see Miscellaneous Acts (Planning) Repeal andAmendment Act l979). In practice, they areequivalent to LEPs; and, while they have playeda significant part in the planning regime, theyare gradually being replaced by LEPs.

In certain circumstances, documents madebefore the introduction of the EnvironmentalPlanning and Assessment Act have the statusof deemed development control plans.

LEPs and related legislationTo find out the development status of a site,the first document to consult is the relevantLEP, if there is one that covers the area concerned.

Amendments to planning instrumentsIt is likely that the original LEP, ordinance ororder will have been amended since it firstcame into operation. A planning scheme ordi-nances could be suspended in part and replacedby an interim development order, or amendedby a varying scheme (Local Government Act 1919s.342L). Interim development orders wereamended by alteration (s.342U(5)).

Since the passing of the Environmental Plan-ning and Assessment Act, amendments to allplans, including deemed EPIs, are made by newLEPs (s.74(1)). Many amendments are concernedwith rezoning quite small blocks of land, toallow a prohibited development to go ahead.Some areas now have a large number of LEPsbecause the original plan did not foresee theamount of development in these areas.

LEPs, therefore, can take very different forms.They can deal with the whole of a local gov-ernment area, or one small block.

What instruments take precedence?SEPPs and REPs are put in place by the stategovernment, whereas LEPs, although formallymade by the state government, are primarilythe domain of local government. It might there-fore be expected that, if there is any conflictbetween various EPIs, SEPPs and REPs wouldtake precedence over LEPs.

However, this is not necessarily the case. Themost recent instrument prevails over earlierones, unless one of the instruments makes itclear that this is not the intention (s.36). If aSEPP states that it will prevail over a REP orLEP, this will be the case even if the inconsis-tent REP or LEP was made later (s.36(2)). Sim-ilarly, a REP prevails over a LEP if it states thatit does (s.36(3)).

Under amendments to the EnvironmentalPlanning and Assessment Act passed but not com-menced at the time of writing, section 36 ischanged so that generally SEPPs take prece-dence over REPs and LEPs and generally REPstake precedence over LEPs.

Ensuring consistency betweeninstrumentsThere are also provisions in the Act to ensurethat new LEPs are consistent with existing SEPPsand REPs (see page 71). In Coffs Harbour Environ-ment Centre Inc v Minister for Planning, it wasargued that a LEP that fails to carry out direc-tions in an earlier REP is invalid. The Court ofAppeal held that, to the extent that it wasinconsistent with the REP, the LEP’s validitywas established by section 36 of the Act.

A SEPP and a LEP may apply concurrently(see Mete v Warringah Council 133 LGERA 420).



ENVIRONMENTALPLANNINGINSTRUMENTS

Under the Environmental Planning and Assess-ment Act, EPIs can deal with a very broad rangeof issues. The Act states, for example, that planscan be made ‘for the purposes of achieving anyof the objects’ of the Act (s.24). The objects(s.5) are:

(a) to encourage:(i) the proper management, development

and conservation of natural andartificial resources, includingagricultural land, natural areas,forests, minerals, water, cities, townsand villages for the purpose ofpromoting the social and economicwelfare of the community and abetter environment,

(ii) the promotion and coordination ofthe orderly and economic use anddevelopment of land,

(iii) the protection, provision andcoordination of communication andutility services,

(iv) the provision of land for publicpurposes,

(v) the provision and coordination ofcommunity services and facilities,

(vi) the protection of the environment,including the protection andconservation of native animals andplants, including threatened species,populations and ecologicalcommunities and their habitats, and

(vii) ecologically sustainable development,and

(viii) the provision and maintenance ofaffordable housing, and

(b) to promote the sharing of theresponsibility for environmental planningbetween the different levels of governmentin the State, and

(c) to provide increased opportunity for publicinvolvement and participation inenvironmental planning and assessment.

Another section of the Act states that EPIscan provide for ‘protecting, improving or util-ising, to the best advantage, the environment’(s.26(1)(a)).

The Act also allows EPIs to address otherissues. They can (s.26(1)):• control development• reserve land for public purposes• control advertisement• provide for the protection of trees,

vegetation, native animals and plants.

The Environmental Planning and Assessment Actdefines ‘environment’ as including ‘all aspectsof the surroundings of humans, whetheraffecting any human as an individual or in hisor her social groupings’ (s.4(l)). This is clearlya lot broader than control of land use, on whichthe older Act focused.

However, the fact that EPIs can be wide-ranging does not mean that they must be. Inpractice, much depends on the creativity ofplanners and the leeway allowed to local coun-cils by the state government. The Minister forInfrastructure and Planning can veto LEPs, ormake alterations before approving them (seepage 71). Draft LEP proposals are vetted by theParliamentary Counsel’s Office, which also hasa restraining influence.

Local environmental plansLEPs are complex documents, and the discus-sion that follows makes it clear that it is vitallyimportant to read them as a whole and notsimply glance at the zoning tables. Even if atype of development is permitted in a partic-ular area, for example, a particular proposeddevelopment of that type may not comply withspecified development standards (see page 31),or a public utility may be able to undertake aproject that is otherwise prohibited by a LEP(see page 80).



How LEPs are made1 A council decides or is directed by Minister

for Infrastructure, Planning and NaturalResources to prepare a draft plan(ss.54–55).

2 The Department of Infrastructure, Planningand Natural Resources is notified (s.54).

3 Where required, the council prepares anenvironmental study, according tospecifications from the director of thedepartment and after consultation withpublic authorities (ss.57, 62–63, 74(2)(b)).

4 A draft plan is prepared in consultationwith public authorities (ss.61–63).

5 The draft plan is sent to the departmentfor certification (ss.64–65) (or the councilmay certify it under delegated authority).

6 The draft plan and the environmental studyare exhibited by the council, andsubmissions are invited (s.66). Anyone maymake written submissions during this period(s.67).

7 The council considers any submissionsreceived, and may hold a public hearing(s.68).

8 The council makes any amendments itconsiders necessary (ss.68(3)).

9 The council may (but need not) re-exhibitthe amended plan (s.68(3B)).

10 The draft plan with any amendments andother information is submitted to thedepartment (s.68(4)).

11 The director reports to the minister (s.69).12 The minister makes a decision in relation to

the plan (s.70).

Zoning provisionsOlder LEPs that cover a fairly large area lookvery similar to planning scheme ordinances(see page 68) and many interim developmentorders. They contain zoning tables (see page 30),giving the following information:• column I: name of the zone• column II: purposes for which

development may be carried out withoutdevelopment consent

• column III: purposes for whichdevelopment may be carried out subject toconditions imposed under the Act

• column IV: purposes for whichdevelopment may be carried out only withdevelopment consent

• column V: purposes for whichdevelopment is prohibited.

The Act’s definition of ‘development’ includesthe subdivision of land (s.4(1)), which can becontrolled by LEPs (but not the old planningscheme ordinances).

Recent developments in LEPsThe zoning tables of more recent LEPs are pre-sented in paragraphs rather than columns.The change in format has been accompaniedin some cases by more significant changes,designed to make planning more flexible. TheWagga Wagga LEP 1985 and the Goulburn LEP1990, for example, have abandoned the cate-gory of prohibited development altogether,leaving most development permissible with thecouncil’s consent, apart from limited types ofdevelopment that are permissible withoutconsent. Objectives for particular zones are speltout in the plan, and these are intended toensure that inappropriate development doesnot take place.

Part of the purpose of these initiatives is toavoid legal disputes about how the purpose ofthe development should be defined, and tofocus instead on the impact of the develop-ment on the environment. The concern is withperformance or effects, rather than classifica-tion (see page 34). It is argued, for example,that if a development does not cause pollutionor otherwise affect the amenity of an area, itis irrelevant that it would ordinarily be definedas industry.

Other plans do not abandon the prohibitedcategory altogether, but achieve a broadlysimilar effect by only prohibiting developmentthat is not ‘generally consistent’ with one ormore of the objectives of particular zones.



Complementary and ancillary purposes

In Coffs Harbour Environment Centre Inc vCoffs Harbour City Council (1991), JusticeClarke of the Court of Appeal commented onzone objectives that enabled development ofland for recreation purposes or purposes asso-ciated with recreation. He said that they were

designed to permit developments whichmay not promote public recreation in astrict sense, but which may becomplementary or ancillary to a particularrecreational use of the land.

However, in what may be a misreading of thedecision in this case, Chief Justice Pearlmanof the Land and Environment Court adoptedthe approach that a development will be heldto be consistent with the objectives if it isnot antipathetic to them, and it is not nec-essary to show that the development pro-motes or is ancillary to those objectives, oreven that it is compatible (Schaffer Corpora-tion Ltd v Hawkesbury City Council (1992) 77LGRA 21). See also Challister Ltd v BlacktownCity Council (1992) 76 LGRA 10; Hospital ActionGroup Association Inc v Hastings MunicipalCouncil (1993) 80 LGERA 190; Russo v KogarahCouncil (1995) 86 LGERA 300.

CASE STUDIES

Public participationThe legislation allows greater opportunity formembers of the public to participate in theforward planning process than in the devel-opment control process – that is, there is moreopportunity to comment on proposed instru-ments than on specific development applica-tions. Anyone can comment on draft LEPs (seepage 71), but in general the Act gives the publicthe right to comment only on applications forcertain kinds of development, generally adver-tised development and designated development (seepage 131).

Public comment on advertiseddevelopmentOne way for councils to ensure that the publiccan participate in decision-making is to makeuse of the provisions for advertised develop-ment. There is a general category of advertiseddevelopment in the Wollongong LEP 1990, forexample: this allows development that wouldpreviously have been prohibited to take placein exceptional circumstances after public con-sultation. Under previous planning practice, arezoning would have been necessary in orderfor the development to go ahead.

Scheduled developmentLEPs usually include a schedule listing devel-opments to which its controls do not apply.Such developments primarily relate to the activ-ities of public-utility undertakings and publicauthorities. Development consent is not requiredfor listed development when carried out bythese bodies, even if the zoning tables other-wise appear to require it. Indeed, even if thezoning tables actually prohibit the develop-ment, the schedule allows it to go ahead. Thisbecomes important when considering the oper-ation of Part 5 of the Environmental Planningand Assessment Act (see page 229).

DefinitionsEnvironmental planning instruments includedefinitions of the uses set out in the columnsof the zoning table – for example ‘dwellinghouse’, ‘car repair station’ and ‘home industry’.Courts must often decide whether a council hasmade the correct decision as to whether a par-ticular proposal falls within one definition ratherthan another (see also Woolworths Ltd v PallasNewco Pty Ltd (2004) NSWCA422).

In order to ensure that expressions and def-initions are used consistently in NSW planninginstruments, a set of model provisions has beendevised, and LEPs usually adopt the definitionsspelt out in these (see page 88).

In some circumstances, LEPs adopt definitionscontained in other EPIs. SEPP 33–Hazardousand Offensive Development, for example,



contains definitions of such terms as ‘offen-sive industry’ and ‘hazardous industry’ thatoverride those used in LEPs.

Under amendments to the EnvironmentalPlanning and Assessment Act, passed but notcommenced at the time of writing (September2005), new sections 33A and 33B provide forthe staged standardisation of LEPs.

Development standardsLEPs contain development standards, whichspecify requirements or fix standards in rela-tion to the carrying out of development. Exam-ples are given in section 4(1) of the Act; theyinclude such things as:• minimum site areas for particular kinds of

development• height restrictions• parking requirements• density controls over residential

flat building• minimum set-back distances from roads.

Certain sorts of developments, such as servicestations, drive-in theatres and drive-in take-away food shops, often attract very detaileddevelopment standards.

If a proposed development does not complywith a development standard, it usually cannotgo ahead without modifications being made,although SEPP 1 does allow for some flexibilityin such cases (see page 78).

Development standards can also be fixedunder the regulations.

Development standard or prohibition?Sometimes there is a question whether a pro-vision is a development standard (which can bevaried by a SEPP 1 objection – see page 78) or aprohibition (which cannot). See Strathfield Munic-ipal Council v Poynting (2001) 116 LGERA319.

Complying developmentIf a development can be addressed by a pre-determined set of development standards, it isknown as ‘complying development’. Such devel-opment can proceed after the council or a

private accredited certifier has issued a com-plying development certificate (see page 219).

Non-discretionary development standardsAn EPI or regulation may identify certain devel-opment standards as ‘non-discretionary devel-opment standards’, which means that theconsent authority has limited powers whenconsidering an application for such develop-ment (s.79C(2)).

Section 79C and other mattersSection 79C of the Act sets out matters that acouncil must consider in all cases before grantingconsent to development. LEPs may also covermany other matters, including:• conservation of items of environmental

heritage, such as historic buildings• matters that councils must take into

account before granting consent toparticular kinds of development (seepage 163)

• whether a council must consult withpublic authorities in particular cases, andwhether the authority has the power toveto certain approvals

• whether certain types of development, forexample advertised development ordesignated development, require additionalor different consideration anddetermination.

Development control plansDevelopment control plans can deal with exactlythe same matters as LEPs and REPs, but in moredetail (ss.51A(1), 72(1)). A council can also makea development control plan if it wants to:• identify development as advertised

development (see page 154)• make additional notification or advertising

requirements for certain types ofdevelopment

• specify matters it must take into accountin making orders, in addition to thematters listed in the regulations.



In practice, development control plans gener-ally cover such matters as foreshore develop-ment, car parking and landscaping.

Legal status of developmentcontrol plansUnlike EPIs, provisions in development controlplans are not legally binding on decision-makerswho are considering projects. They are simplyfactors to be taken into consideration before adecision is reached. The increased use of devel-opment control plans, therefore, is another stepin making the planning process more flexible.

Nevertheless, development control plansmust generally conform to the provisions ofthe relevant EPI, or they will be declared invalid(ss.72(3), 51A(3); Guideline Drafting and Designv Marrickville Municipal Council (1988) 64 LGRA275). At the local level, a development controlplan dealing with notification or advertisingmay add to the notification and advertisingrequirements of the regulations, but not replaceor reduce those requirements (s.72(1A)). Cri-teria for giving orders listed in a developmentcontrol plan must be consistent with the cri-teria specified in the regulations (s.72(1B)).

Councils are not bound to comply with theirdevelopment control plans when consideringa development application, but must treat themas a fundamental element in the decision-making process (see Zhang v Canterbury CityCouncil 115 LGERA 373).

Under the amendments to the EnvironmentalPlanning and Assessment Act, passed but notcommenced at the time of writing (September2005), section 72 is omitted and a newDivision 6 is inserted dealing with developmentcontrol plans.

Council codes and policiesCouncil codes and policies deal with the samekinds of subject matter as development controlplans, but they are not made in accordancewith the procedural requirements necessary for

making a development control plan. A codethat has been made in accordance with theseprocedural requirements is in fact a develop-ment control plan. Council codes and policieshave no official status under the EnvironmentalPlanning and Assessment Act, although they maybe taken into account when a decision aboutdevelopment is being made.

Regional environmental plansREPs can only be made where the Minister forInfrastructure, Planning and Natural Resourcesis of the opinion that the matters they dealwith are of significance for a region, or part ofa region (s.51(2)).

The minister has a very broad discretion todetermine precisely what constitutes a region(s.4(6)). Some regions include a number of localcouncil areas (for example, the Hunter REP1989, which covers over 34 000 square kilo-metres including 14 local government areasand a population of over half a million). Inthe Sydney region, however, many REPs applyonly to part (sometimes a small part) of asingle council area (for example, Sydney REP5–Chatswood Town Centre and Sydney REP24–Homebush Bay Development Area). By com-parison, Sydney REP 20–Hawkesbury/NepeanRiver (No 2–1997) applies to land in 15 localgovernment areas.

There is a list of all REPs currently in force(September 2005) on page 99.

Types of REPsRegional environmental plans can take a numberof forms.

REPs that set planning controlsMany REPs are surrogate LEPs, covering areasin which the Department of Infrastructure,Planning and Natural Resources wants greaterplanning input than it would otherwise havein order to facilitate development or to protecta sensitive environment. The degree of stateintervention varies. Many REPs interfere only



with council discretion at the forward plan-ning level and retain the council as the consentauthority (for example Sydney REP 17–KurnellPeninsula). Others remove council powers alto-gether by making the minister or the Directorof Planning the consent authority (for exampleSydney REP 11–Penrith Lakes Scheme).

How REPs are made1 The Director of Planning decides or is

required by the minister to prepare a draftplan (s.40).

2 Where required, the director prepares anenvironmental study after notification tocouncils, advisory bodies and publicauthorities (ss.41, 45–46, 74(2)(a)).

3 A draft plan is prepared after notification tocouncils, the Local Government LiaisonCommittee and public authorities (ss.44–46).

4 The draft plan and environmental study areexhibited, and submissions invited (s.47).During this period, anyone may makewritten submissions (s.48).

5 The director considers any submissionsreceived, and may order an inquiry (s.49).

6 The director makes any amendmentsconsidered necessary, and may (but neednot) re-exhibit the amended plan (s.49).

7 The draft plan with any amendments andthe director’s report is submitted to theminister (s.50).

8 The minister makes a decision in relation tothe plan (s. 51).

REPs that set planning parametersA second category of REPs does not specifydetailed development controls but outlines howcouncils must exercise their discretion. SydneyREP 19–Rouse Hill Development Area, forexample, spells out the kinds of zones and zoneobjectives that must be included by councilsin LEPs for urban development release areasintended to cater for 70 000 new dwellings,but leaves it to the three councils affected toapply them to precise areas.

Some REPs combine broader policy objectivesand detailed development controls that over-

ride other EPIs. The Illawarra REP 1 spells outground rules in relation to the making of newEPIs, focusing on such issues as the protectionof prime agricultural land and environmentalprotection. The Kosciuszko REP seeks to developmanagement initiatives by setting out proposalsfor future action and coordination betweencouncils and other public authorities.

Specific-issue REPsA third category of REP focuses on a specificissue in a region, amending controls containedin applicable EPIs. Sydney REP 7 loosens existingcontrols by ‘spot rezoning’ parcels of surplusgovernment land in a number of local gov-ernment areas to allow multi-unit housing.Lower South Coast REP No 1, on the otherhand, restricts development by imposing a 14-metre height restriction on buildings.

State environmental planningpoliciesState environmental planning policies (SEPPs)can only be made where the Minister for Infra-structure, Planning and Natural Resources is ofthe opinion that the matters concerned are ofsignificance for the state (Environmental Plan-ning and Assessment Act s.39(3)). The provisionsin the legislation dealing with the content ofEPIs apply to SEPPs as well as REPs and LEPs.

How SEPPs are made1 The Director of Planning decides or is

required by the minister to prepare a draftplan (s.37).

2 The minister may publicise the draft planand consider submissions (s.39(2)).

3 The minister makes any alterationsconsidered necessary (s.39(1)).

4 The minister makes a recommendation tothe governor (s.39(1)).

5 The governor makes the policy (s.39(4)).


55

126 When is development consentrequired?

130 Types of development

135 Nonconforming uses

141 Development applications

149 Procedure for granting consent

152 Public participation

159 Making the decision

171 Development consents

178 Development contributions

191 Appeals

193 Modification, revocation andimplementation of consent

198 Construction, occupation andsubdivision certificates

200 Enforcement of consents

205 Major projects

DDeevveellooppmmeenntt



In this chapter, ‘the minister’ refers to theminister administering the EnvironmentalPlanning and Assessment Act 1979.

For the purposes of this discussion, a ‘project’includes not only the erection of buildings orother structures, but also such things as:• clearing land• spraying pesticides• extracting water for irrigation• discharging wastes.

In some cases, one project might consist of acombination of activities.

A project may be carried out by any organ-isation – a government body, private industryor a farming cooperative, for example. It mayalso be purely personal – for example, buildinga home. In all these cases, the question is:under what circumstances will the law permita particular project to go ahead?

In most cases, a project requires permissionfrom a particular public authority, followingan application by a developer. Certain activi-ties are completely prohibited by law. Forexample, prospecting for or mining uraniumin NSW is prohibited by the Uranium Miningand Nuclear Facilities (Prohibitions) Act 1986(s.7(1): see p. 629).

Generally, however, there is a reluctance totake such an inflexible position. Many statu-tory provisions appear at first sight to beabsolute prohibitions, but most provide thatsome permission (a licence or consent) can besought for the activity in question. Even thegeneral prohibitions against harming threat-ened species and damaging their habitat arebypassed where prior permission has beenobtained (National Parks and Wildlife Act 1974ss.118A, 118D). Other projects are not pro-hibited altogether, but must be carried out ina particular way or comply with certain generalrequirements or ‘standards’. If, for example,the project amounts to ‘development’, it willusually have to comply with development stan-dards set out in EPIs (see page 31). If it is a

building, it will usually have to comply withbuilding standards contained in the BuildingCode of Australia.

How many permissionsare required?Ideally, only one application for permissionshould have to be made to one decision-makingbody. This is often not the case. The law mayregard a project as a number of activities, eachrequiring the approval of a different decision-maker under various pieces of legislation – andif permission cannot be obtained for a partic-ular activity, the whole project may collapse.A new mine, for example, is likely to requirenot only a mining lease, but also:• an environment protection licence under

the Protection of the Environment OperationsAct 1997

• development consent• a licence under the Water Act 1912 or the

Water Management Act 2000.

There are several explanations for this situa-tion. One is historical: different legal controls,focusing on different aspects of projects, wereintroduced at different times, and often littleattempt was made to reconcile them with pro-visions that already existed.

Another explanation is that it is consideredappropriate for different bodies to make deci-sions on different aspects of a proposal, oftenbecause specific types of expertise are found inparticular parts of the bureaucracy. Sometimesrequirements differ because there is competi-tion between public bodies or governmentdepartments, because of the constitutional divi-sion of power between state and Commonwealthgovernments, or because of the political balanceof power between state and local government.

Integrating the permission processLate in the 20th century, legislators had becomeaware that the various permission requirementscaused problems and made some attempt tointegrate them – although not to cut down on


5 : DEVELOPMENT 125

the number of permissions required. The MiningAct 1992 contains extensive provision for inte-grating the granting of mining titles with theprovisions of the Environmental Planning andAssessment Act. Amendments made in 1997 tothe Environmental Planning and Assessment Actintroduce the concept of ‘integrated develop-ment’ into the development control system(see page 131). The 1997 amendments also tooka step towards reducing the number of sepa-rate approvals required by including buildingand subdivision approval in the procedure foracting on a development consent.

In 2005, a separate streamlined system forthe assessment of major projects was intro-duced into the Environmental Planning andAssessment Act (see page 205).

How permissions workSome permissions seek to regulate projects asan ongoing activity (for example environmentprotection licences), while others focus on theirinitial setting up (for example developmentconsent). Where a permission regulates anongoing activity, the decision-maker has muchgreater power to impose conditions. A permis-sion may also have to be renewed or reviewedregularly: for example, environment protectionlicences must be reviewed at least every threeyears (Protection of the Environment OperationsAct s.78).

Permissions dealing with the initial settingup of a project cannot be controlled to thesame degree, if at all, and ordinarily do nothave to be renewed. This means that they givelong-term enforceable rights to the personobtaining permission.

It is commonly assumed that developmentconsent is somehow at the core of this complexregulatory system – probably because develop-ment consent is the commonest form of per-mission encountered. But many projects do notrequire development consent, even though theymay require permission under other legislation(see chapter 6). Even where development

consent is required, it is in no sense pre-eminent. Other permissions must be obtainedif the law requires them. Development consentis only one of a number of overlapping projectcontrol processes operating at present in NSW.


WHEN IS DEVELOPMENTCONSENT REQUIRED?

If an environmental planning instrument (EPI)requires that consent be obtained before a par-ticular activity can be carried out, the provi-sions of Part 4 of the Environmental Planningand Assessment Act apply unless the develop-ment is a major infrastructure project or otherdevelopment to which Part 3A applies. An EPIcan require consent whenever it is empoweredto do so by sections 24 or 26 of the Act, andthese are very broadly worded (see page 70).Since the 1997 amendments to the Act, theterm ‘development’ includes anything referredto in section 26 that is controlled by an EPI.In general terms, Part 4 of the Act establishesa threefold classification for development:• development that does not need

development consent• development that needs consent• development that is prohibited.

The assessment process for major infrastruc-ture projects and other development to whichPart 3A applies is discussed on page 205.

Zoning tablesIn practice, development consent is most fre-quently required by the zoning tables in localenvironment plans (LEPs), although it would beunwise to look only there. The whole of theLEP should be examined in detail, along withany regional environment plans (REPs) and stateenvironmental planning policies (SEPPs) that applyto the land in question. Care must be taken,because any EPI can amend, expressly orimpliedly, the provisions of a previous EPI(Marchese and Partners Architects v WarringahCouncil [2002] NSWLEC 41).

Zoning tables regulate development. Nor-mally, one part or column of the table (usuallycolumn 5 in older EPIs) indicates the purposesfor which development is prohibited. Eventhen, it may be possible to obtain approval ifthe development is declared by the minister

to be a major project to which Part 3A applies.Another part or column (usually column 4)sets out the purposes for which developmentcan go ahead only after development consenthas been obtained. Before a decision can bemade as to whether development is permis-sible with consent, two questions mustbe answered:• does the project amount to development?• does the zoning table say that a project for

this purpose requires development consent?

What is development?Under the Environmental Planning and Assess-ment Act (s.4(1)), ‘development’ means:• the use of land• the subdivision of land• the erection of a building• the carrying out of a work• the demolition of a building or work• any other act, matter or thing referred to

in section 26 that is controlled by an EPI(see below).

Development ‘does not include any develop-ment of a class or description prescribed bythe regulations for the purposes of the defini-tion’ – that is, something is not developmentif the regulations say it is not.

The reference in the definition to the mereuse of land being development must be readalongside provisions that protect existing andcontinuing uses (see pages 135–140).

Matters covered by section 26The matters referred to in section 26 of theAct include:• protecting, improving or utilising the

environment• protecting and conserving native animals

and plants• protecting or preserving trees or vegetation• controlling advertising.

If such matters are controlled by an EPI, theywill amount to development. For example, inDames and Moore Pty Ltd v Byron Council [2000]



5 : DEVELOPMENT 127

NSWLEC 46 and Cameron v Lake Macquarie CityCouncil [2000] NSWLEC 34, the court held thatconduct contrary to a tree preservation ordermade by the council was development thatrequired consent because it was conduct con-trolled by an EPI.

What is a work?The expression ‘the carrying out of a work’ isnot defined in the legislation, and some caseshave dealt with this.

It seems that the concept of a ‘work’ is‘intended to refer to something done to theland itself’ (Parramatta City Council v BrickworksLtd (1972) 128 CLR 1 at p. 24; Warringah ShireCouncil v May (1979) 38 LGRA 424). However,questions of degree are involved (see ParramattaCity Council v Shell Company of Australia Ltd(1972) 26 LGRA 25). Activities associated with‘the ordinary and normal pursuit of an existingland use’ do not amount to the carrying outof a work (CB Investments Pty Ltd v Colo ShireCouncil (1980) 41 LGRA 270). Whether or notland clearing or land filling amount to ‘works’will depend on whether or not the changesbrought about are substantial (Kiama MunicipalCouncil v French (1984) 54 LGRA 42; WarringahShire Council v May). In Kiama Municipal Councilv French, it was held that dumping fill on land,which had the effect of raising it by no morethan ten centimetres in order to improve thequality of vegetation for grazing, did notamount to a work. Instead it was a use of theland – cultivating fodder. Pesticide spraying isneither a work nor a use of land (Rundle v TweedShire Council (1989) 68 LGRA 308). A sedimentpond to serve a 17-lot subdivision was a ‘work’,not a building (Williams v Blue Mountains CityCouncil [2001] NSWLEC 73).

Erecting temporary and minor structuresIf a temporary structure is erected, does thatcomprise the ‘erection of a building’ as definedin the Act? The Act defines a building to includepart of a building and any structure or part ofa structure, but excludes:• a manufactured home

• a movable dwelling or associated structure• a ‘temporary structure’ within the

meaning of the Local Government Act 1993.

In turn, a temporary structure is defined toinclude a ‘movable structure’. In Cohen & Anorv Wyong Shire Council [2005] NSWCA 46, thequestion was whether a shipping containerplaced on land was a building that requiredconsent. In Garbacz & Ors v Morton & Ors (1999)108 LGERA 251, the court held that a marqueewas neither a building nor a structure withinthe meaning of the Act because the marqueehad none of the features of a fixture and thepublic interest did not suggest that every erec-tion, movement or demolition of a marqueeshould be the subject of a specific councilapproval.

The question whether the erection of a minorstructure constitutes development depends onwhether the Act was intended to cover thattype of structure (Mulcahy v Blue Mountains CityCouncil (1993) 81 LGERA 302). In Conomos vChryssochoides (1997) 97 LGERA 113, the courtheld that a set of sewer and drainage pipes onthe side of a residential building in a city suburbwas a structure or part of a structure because‘their effect upon the amenity of the adjoiningneighbour is unreasonable in all the circum-stances’. A similar approach was taken inBurwood Council v Russo (40145 of 1994, 14March 1995), where corrugated iron sheetingwas held to be a structure in a densely popu-lated urban residential area.

Development comprising ‘a use of land’ refersto or includes incidental and associated uses(North Sydney Council v Ligon 302 Pty Ltd (1996)91 LGERA 352). Any person who uses land insome way carries out a development of it (Hill-palm Pty Ltd v Heavens Door Pty Ltd (2004) 137LGERA 57).

Purposes of the developmentNot all development requires developmentconsent. Development for some purposes willbe prohibited by the relevant zoning table inthe EPI; development for others purposes will


be allowed without any need for consent. TheLand and Environment Court and the Courtof Appeal often deal with difficult questionsof classification, and the role of the courts hasbeen significantly expanded in recent times.Whether development is permissible or pro-hibited by an EPI is a fact, which the courtmust determine for itself (Woolworths Ltd vPallas Newco Pty Ltd & Anor (2004) 136 LGERA288; Chambers v McLean Shire Council (2003)126 LGERA 7; Issa v Burwood Council 137 LGERA221). Previously, the courts had held that thiswas a matter for the consent authority actingreasonably, and did not intervene in such deci-sions unless they were unreasonable (Londishv Knox Grammar School (1997) 97 LGERA 1).

Problems with classifyingdevelopmentProblems arise in relation to classification fora number of reasons.

Terms and definitionsThe purpose of development is usually spelt outin zoning tables in terms of things like ‘dwellinghouses’ or ‘caravan parks’. The zoning tablesdo not refer to actions such as ‘to dwell in asa family’ or ‘to park caravans’. The things areoften defined in the definition section of theEPI, or in any model provisions (see page 88)that have been incorporated. Usually the defi-nitions are expressed in terms of purpose, andemploy phrases such as ‘used for the purposeof’ or ‘used for’ or ‘used as’. But sometimes theyare framed in terms of the design or structureof a building (for example, ‘a building designedfor use as a dwelling for a single family’).

Sometimes particular purposes are defineddifferently in different EPIs. This is especiallytrue of deemed EPIs (see page 68), which oftencontain their own set of definitions. There are,for example, a number of different definitionsof ‘dwelling house’. Attempts have been madeto have individual EPIs incorporate a standardset of definitions contained in model provi-sions. Most recently, in September 2004, theDepartment of Infrastructure, Planning and

Natural Resources (now the Department of Plan-ning) has released a working draft discussionpaper entitled ‘Standard provisions for localenvironmental plans in NSW.’ The paper dis-cusses a reform proposal for greater standard-isation of the form, layout, zones, provisionsand definitions in LEPs.

References to other legislationSometimes a definition in an EPI refers to otherlegislation, such as ‘development permissibleunder the National Parks and Wildlife Act’. Thisrequires the courts to determine whether a par-ticular proposal, such as refreshment rooms, isan activity for which a lease or licence can begranted under that Act (see Woollahra Munic-ipal Council v Minister for Environment (1991)23 NSWLR 710; Willoughby City Council v Min-ister Administering the National Parks and WildlifeAct (1992) 78 LGERA 19; Friends of Pryor ParkIncorporated v Ryde City Council & Anor (1995)89 LGERA 226).

Is a use specifically prohibited?Another problem can arise if a type of use isspecified as permissible (for example, ‘com-munity facilities’), but a specific use is prohib-ited (for example, ‘childcare centres’) (seeAshfield Municipal Council v The Australian Collegeof Physical Education (1992) 76 LGRA 151; Eganv Hawkesbury City Council (1993) 79 LGERA 321;Berowra RSL v Hornsby Shire Council (2001) 114LGERA 345; RCM Constructions v Ryde CityCouncil [2004] NSWLEC 266).

Dual-purpose developmentsOther problems arise when a development maybe viewed as having more than one purpose.Consider, for example, a zone where develop-ment for the purposes of agriculture is per-missible with consent, but use for the purposesof an extractive industry is prohibited. Whatif a farmer wishes to remove a mound of graveldeposited by a river? Removal will make theland available for agricultural purposes, but willalso provide the farmer with income, becausethe gravel can be sold. Is the purpose of the



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development the carrying out of agriculture orthe winning of material?

In such situations, the courts are wary ofdeciding primarily on the basis of the inten-tions of the developer, because some degree ofobjectivity must be maintained. Impact on theenvironment is important, but is usually con-sidered later, when deciding whether or notconsent should be given, not at the earlier stageof classification. Similarly, the courts do notconsider that a development should be pre-vented simply because one of the purposes ofthe development is prohibited.

Dominant or independent usesThe central issue is whether one of the pur-poses is subordinate to a dominant purpose. Ifit is, it can be disregarded, and the develop-ment characterised by the nature of the dom-inant purpose (Foodbarn Pty Ltd v Solicitor-General(1975) 32 LGRA 157). For example, in Wool-worths Ltd v Pallas Newco Pty Ltd & Anor (2004)136 LGERA 288, the ‘drive-in’ aspect of a largetakeaway liquor store was held to be ancillaryto the use of the premises for a conventionalbottle shop. Accordingly, the store was not a‘drive-in takeaway establishment’.

If the purposes are independent, they mustbe characterised and considered separately. Ifone purpose is permissible and one is prohib-ited, the development will be prohibited (CBInvestments Pty Ltd v Colo Shire Council (1980)41 LGRA 270; Liauw v Gosford City Council(2004) 136 LGERA 349). An ancillary use canbe an independent use: a convenience store ina petrol station is ancillary to the petrol stationbut is, nevertheless, an independent use(Baulkham Hills Shire Council v O’Donnell (1990)69 LGRA 404 at p. 410). A minor use cannotbe ignored simply because it is minor (Steedman& Anor v Baulkham Hills Sire Council [No 2](1993) 31 NSWLR 562. The ‘independentpurpose’ test really does little more than begthe question, and there does not seem to bemuch predictability or principle in this area.Each case depends on the particular facts andthe views of individual judges, which are fre-quently not spelt out.

Policy questionsOne basic policy issue is whether zoning tablesshould make distinctions between broadlysimilar types of development. An EPI may pro-hibit development for the purpose of hazardousindustry in a residential zone, but should thisbe extended to development for the purposeof a boarding house or hostel in a zone whereother forms of residential development areallowed? (See Burwood Municipal Council v Abo-riginal Hostels Ltd (1979) 39 LGRA 150; LornaHodgkinson Sunshine Home v Lane Cove Munic-ipal Council (1979) 38 LGRA 282). Should notdecisions in such cases be made on a case-bycase-basis, taking into account the particularcircumstances? This is increasingly the case asthe state government pursues more flexibleapproaches to environmental planning (seepage 71).

Overriding zoning tablesOther EPIsEven where the purpose of a development hasbeen properly characterised, and it appears fromthe zoning tables that the development is per-missible if consent is obtained, that is by nomeans the end of the matter. The zoning tablesmay be overridden by other provisions in anEPI. The EPI may identify the developmentproposed as ‘exempt development’, in whichcase development consent is not required (seepage 130). An EPI such as SEPP 4 (see page 79)may apply, stating that the development doesnot need consent. This illustrates the vitalimportance of a full reading of all EPIs thataffect the land in question. A quick glance atthe zoning tables may give a completely mis-leading impression.

Is development excluded froman EPI?Schedules to EPIs (for example, the one incor-porated into the Environmental Planning andAssessment Model Provisions 1980) sometimescontain a list of developments excluded fromthe general restrictions in the body of the plan,


including the zoning tables. The list oftenincludes certain kinds of development carriedout by public utilities supplying water, gas andelectricity, sewerage services, and transport. Thismeans that the listed development will notrequire development consent. Even if the devel-opment is prohibited under the zoning provi-sions, the schedule means that the prohibitionhas no effect. Development prohibited underthe zoning provisions, even if it is not listedin the schedule, may also be able to be approvedby the minister in certain circumstances if itis declared to be a major project to which Part3A of the Act applies (see page 205).

TYPES OFDEVELOPMENT

Since the 1997 amendments to the Environ-mental Planning and Assessment Act, the processof classifying ‘development’ has been morecomplex. In broad terms, the Act establishesthree types of development:• development that does not need

development consent – that is,development that may be carried out inaccordance with the relevant EPI (s.76(1))

• development that needs consent – that is,development that must not be carried outunless a consent has been obtained and isin force, and is carried out in accordancewith the consent and the EPI (s.76A(1))

• development where an EPI provides thatthe development is prohibited or cannotbe carried out on land with or withoutdevelopment consent (s.76B).

Exempt developmentExempt development is development havingminimal environmental impact, specified in anEPI (s.76(2)). Exempt development may becarried out in accordance with the EPI withoutconsent, except on land that is critical habitator is part of a wilderness area within themeaning of the Wilderness Act 1987. Part 5 ofthe Environmental Planning and Assessment Actdoes not apply to exempt development (s.76(3)).The concept of exempt development was intro-duced by the amendments to the EnvironmentalPlanning and Assessment Act in 1997.

SEPPs 60 and 61 list certain kinds of exemptdevelopment. The SEPPs apply only wherecouncils have chosen not to adopt a specificexempt development schedule. Developmentssuch as barbecues, fences, playground equipmentand some advertisements are often included asexempt development.

Development that does not need develop-ment consent is not necessarily ‘exempt devel-opment’. If it is not exempt development, Part



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