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1390 Internals 03 20/12/05 3:33 PM Page 65

Land use planning 3

66 Planning instruments and land use 87 Plan-making

67 Understanding the process 89 Case law: SEPPs and REPs
70 Environmental planning 99 How to participate in plan-making
instruments
1390 Internals 03 20/12/05 3:33 PM
66 T H E E N V I R O N M E N TA L L A W H A N D B O O K
This chapter deals with the various strategies
for land use planning, with the legislation and
the various planning instruments, and with
the relationships between these documents and
the types of provisions they contain. This is
followed by a detailed discussion of the pro-
cedures used to make them (see page 87).
Page 66
PLANNING INSTRUMENTS
AND LAND USE
Control of land use through planning instru-
ments is a fundamental concept in the man-
agement of the environment. There are two
aspects to controlling land use:
• forward planning, which involves creating
planning instruments to control, regulate
and guide future decision-making
• development control (sometimes called
project control), where decisions are made
(usually by the local council) with regard
to these planning instruments.
This chapter deals with forward planning and
the environmental planning instruments (EPIs)
made under the Environmental Planning and
Assessment Act 1979 – that is, it deals with plans
and plan-making. Chapter 5 deals with deci-
sion-making in the development application
process.
Other forms of planning
In addition to planning under Environmental
Planning and Assessment Act, there are other
forms of planning that are dealt with in other
chapters. These include:
• the reservation, dedication and management
of Crown Land for special uses, such as
national parks and state forests (dealt with
in chapters 4 and 12)
• cultural and natural heritage instruments and
controls (dealt with in chapter 16)
• catchment management (dealt with in
chapter 15).
Public participation in
plan-making
The law gives members of the public opportu-
nities to participate in some forward plan-
making. One of the best illustrations of the
importance of participation at the plan-making
stage is in reforms proposed at the time of
writing (June 2005): it is proposed that land-use
1390 Internals 03 20/12/05 3:33 PM Page 67
issues be addressed at the forward planning
stage rather than the development application
stage. It is currently proposed that if local envi-
ronmental plans (LEPs) receive biodiversity cer-
tification, for example, there will be no need
at the development application stage to:
• satisfy the eight-part test (see page 243), or
• obtain the concurrence of the Department
of Environment and Conservation with
regard to threatened species.
3: LAND USE PLANNING 67
UNDERSTANDING
THE PROCESS
Legal status of planning
instruments
Environmental planning instruments (EPIs)
made under the Environmental Planning and
Assessment Act are legally binding on anyone
applying for development consent and on deci-
sion-makers (usually the local council or the
minister). Other documents, such as develop-
ment control plans and council codes or poli-
cies, are guideline documents. Because they are
legally binding, there have been a number of
cases on the meaning and interpretation of
EPIs (see page 89).
CASE STUDY
Land for recreation or effluent?
In 1991 Coffs Harbour City Council resolved
to construct an ocean outfall at Look At Me
Now Headland to dispose of effluent. However,
the EPI provided that the land would be used
for recreational purposes. Coffs Harbour
Environment Centre commenced proceedings
claiming that the proposed sewer outfall was
contrary to the aims and objectives of the
zone under the EPI. The NSW Court of Appeal
held that the proposed development was not
consistent with the zoning objective and so
was prohibited under the EPI (Coffs Harbour
Environmental Centre v Coffs Harbour City
Council 74 LGRA185).
The legislation
Understanding the system requires knowledge
of both the pieces in the jigsaw puzzle and
how the pieces fit together. The planning instru-
ment jigsaw puzzle comprises:
• The Environmental Planning and Assessment
Act, particularly:
– Part 3 (Environmental planning
instruments)
1390 Internals 03 20/12/05 3:33 PM
68 T H E E N V I R O N M E N TA L L A W H A N D B O O K
– Part 3A (Major infrastructure and other
projects)
– Part 4 (Development assessment)
– Part 4A (Certification of development)
– Part 4B (Accreditation of certifiers)
– Part 4C (Liability and insurance).
• the Environmental Planning and Assessment
Regulation 2000 made under the Act,
which provides details of the requirements
set out in the legislation
• environmental planning instruments made
under the Act
• guideline documents such as council codes
and policies and development control
plans.
Zoning, development
standards and prohibitions
One 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 important
decisions 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 (for
example subdivision) is permissible
• setting development standards and/or
prohibitions on particular development or
aspects of particular development, such as:
– specifying minimum permissible lot
sizes for subdivision
– setting maximum building heights
Page 68
– setting foreshore building limits (see for
example Strange v Kiama Municipal
Council 132 LGERA 108).
Types of plans
In addition to the Act, there may be a number
of other instruments that set out what can and
cannot be done when developing a particular
site. 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 Natural
Resources
• 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 on
councils and developers. Anyone may bring an
action to remedy or restrain a breach of an EPI
(s.l23), and developers who do not comply with
prohibitions in these documents risk criminal
proceedings (s.l25).
Deemed EPIs
In some areas, the major local planning
document is not an LEP but a planning scheme
ordinance or an interim development order.
These were the planning instruments used
under the old planning legislation – Part XIIA of
the Local Government Act 1919 – which was
repealed when the Environmental Planning and
Assessment Act came into force. Under that
legislation, planning scheme ordinances were
intended to be definitive documents; interim
development orders were temporary measures
to fill the gap while a planning scheme
ordinance was being made or was suspended.
1390 Internals 03 20/12/05 3:33 PM Page 69
Many areas did not reach the stage of
having their own planning scheme ordinance,
and some still operate under interim
development orders. These ordinances and
orders are deemed to be EPIs under the
Environmental Planning and Assessment Act
(see Miscellaneous Acts (Planning) Repeal and
Amendment Act l979). In practice, they are
equivalent to LEPs; and, while they have played
a significant part in the planning regime, they
are gradually being replaced by LEPs.
In certain circumstances, documents made
before the introduction of the Environmental
Planning and Assessment Act have the status
of deemed development control plans.
LEPs and related legislation
To find out the development status of a site,
the first document to consult is the relevant
LEP, if there is one that covers the area concerned.
Amendments to planning instruments
It is likely that the original LEP, ordinance or
order will have been amended since it first
came into operation. A planning scheme ordi-
nances could be suspended in part and replaced
by an interim development order, or amended
by a varying scheme (Local Government Act 1919
s.342L). Interim development orders were
amended by alteration (s.342U(5)).
Since the passing of the Environmental Plan-
ning and Assessment Act, amendments to all
plans, including deemed EPIs, are made by new
LEPs (s.74(1)). Many amendments are concerned
with rezoning quite small blocks of land, to
allow a prohibited development to go ahead.
Some areas now have a large number of LEPs
because the original plan did not foresee the
amount 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.
3: LAND USE PLANNING 69
What instruments take precedence?
SEPPs and REPs are put in place by the state
government, whereas LEPs, although formally
made by the state government, are primarily
the domain of local government. It might there-
fore be expected that, if there is any conflict
between various EPIs, SEPPs and REPs would
take precedence over LEPs.
However, this is not necessarily the case. The
most recent instrument prevails over earlier
ones, unless one of the instruments makes it
clear that this is not the intention (s.36). If a
SEPP states that it will prevail over a REP or
LEP, 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 that
it does (s.36(3)).
Under amendments to the Environmental
Planning and Assessment Act passed but not com-
menced at the time of writing, section 36 is
changed so that generally SEPPs take prece-
dence over REPs and LEPs and generally REPs
take precedence over LEPs.
Ensuring consistency between
instruments
There are also provisions in the Act to ensure
that new LEPs are consistent with existing SEPPs
and REPs (see page 71). In Coffs Harbour Environ-
ment Centre Inc v Minister for Planning, it was
argued that a LEP that fails to carry out direc-
tions in an earlier REP is invalid. The Court of
Appeal held that, to the extent that it was
inconsistent with the REP, the LEP’s validity
was established by section 36 of the Act.
A SEPP and a LEP may apply concurrently
(see Mete v Warringah Council 133 LGERA 420).
1390 Internals 03 20/12/05 3:33 PM Page 70
70 T H E E N V I R O N M E N TA L L A W H A N D B O O K
ENVIRONMENTAL
PLANNING
INSTRUMENTS
Under the Environmental Planning and Assess-
ment Act, EPIs can deal with a very broad range
of issues. The Act states, for example, that plans
can be made ‘for the purposes of achieving any
of the objects’ of the Act (s.24). The objects
(s.5) are:
(a) to encourage:
(i) the proper management, development
and conservation of natural and
artificial resources, including
agricultural land, natural areas,
forests, minerals, water, cities, towns
and villages for the purpose of
promoting the social and economic
welfare of the community and a
better environment,
(ii) the promotion and coordination of
the orderly and economic use and
development of land,
(iii) the protection, provision and
coordination of communication and
utility services,
(iv) the provision of land for public
purposes,
(v) the provision and coordination of
community services and facilities,
(vi) the protection of the environment,
including the protection and
conservation of native animals and
plants, including threatened species,
populations and ecological
communities and their habitats, and
(vii) ecologically sustainable development,
and
(viii) the provision and maintenance of
affordable housing, and
(b) to promote the sharing of the
responsibility for environmental planning
between the different levels of government
in the State, and
(c) to provide increased opportunity for public
involvement and participation in
environmental planning and assessment.
Another section of the Act states that EPIs
can provide for ‘protecting, improving or util-
ising, to the best advantage, the environment’
(s.26(1)(a)).
The Act also allows EPIs to address other
issues. 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 Act
defines ‘environment’ as including ‘all aspects
of the surroundings of humans, whether
affecting any human as an individual or in his
or her social groupings’ (s.4(l)). This is clearly
a lot broader than control of land use, on which
the older Act focused.
However, the fact that EPIs can be wide-
ranging does not mean that they must be. In
practice, much depends on the creativity of
planners and the leeway allowed to local coun-
cils by the state government. The Minister for
Infrastructure and Planning can veto LEPs, or
make alterations before approving them (see
page 71). Draft LEP proposals are vetted by the
Parliamentary Counsel’s Office, which also has
a restraining influence.
Local environmental plans
LEPs are complex documents, and the discus-
sion that follows makes it clear that it is vitally
important to read them as a whole and not
simply glance at the zoning tables. Even if a
type of development is permitted in a partic-
ular area, for example, a particular proposed
development of that type may not comply with
specified development standards (see page 31),
or a public utility may be able to undertake a
project that is otherwise prohibited by a LEP
(see page 80).
1390 Internals 03 20/12/05 3:33 PM Page 71
How LEPs are made
1 A council decides or is directed by Minister
for Infrastructure, Planning and Natural
Resources to prepare a draft plan
(ss.54–55).
2 The Department of Infrastructure, Planning
and Natural Resources is notified (s.54).
3 Where required, the council prepares an
environmental study, according to
specifications from the director of the
department and after consultation with
public authorities (ss.57, 62–63, 74(2)(b)).
4 A draft plan is prepared in consultation
with public authorities (ss.61–63).
5 The draft plan is sent to the department
for certification (ss.64–65) (or the council
may certify it under delegated authority).
6 The draft plan and the environmental study
are exhibited by the council, and
submissions are invited (s.66). Anyone may
make written submissions during this period
(s.67).
7 The council considers any submissions
received, and may hold a public hearing
(s.68).
8 The council makes any amendments it
considers necessary (ss.68(3)).
9 The council may (but need not) re-exhibit
the amended plan (s.68(3B)).
10 The draft plan with any amendments and
other information is submitted to the
department (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 provisions
Older LEPs that cover a fairly large area look
very similar to planning scheme ordinances
(see page 68) and many interim development
orders. 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 without
development consent
3: LAND USE PLANNING 71
• column III: purposes for which
development may be carried out subject to
conditions imposed under the Act
• column IV: purposes for which
development may be carried out only with
development consent
• column V: purposes for which
development is prohibited.
The Act’s definition of ‘development’ includes
the subdivision of land (s.4(1)), which can be
controlled by LEPs (but not the old planning
scheme ordinances).
Recent developments in LEPs
The zoning tables of more recent LEPs are pre-
sented in paragraphs rather than columns.
The change in format has been accompanied
in some cases by more significant changes,
designed to make planning more flexible. The
Wagga Wagga LEP 1985 and the Goulburn LEP
1990, for example, have abandoned the cate-
gory of prohibited development altogether,
leaving most development permissible with the
council’s consent, apart from limited types of
development that are permissible without
consent. Objectives for particular zones are spelt
out in the plan, and these are intended to
ensure that inappropriate development does
not take place.
Part of the purpose of these initiatives is to
avoid legal disputes about how the purpose of
the development should be defined, and to
focus instead on the impact of the develop-
ment on the environment. The concern is with
performance or effects, rather than classifica-
tion (see page 34). It is argued, for example,
that if a development does not cause pollution
or otherwise affect the amenity of an area, it
is irrelevant that it would ordinarily be defined
as industry.
Other plans do not abandon the prohibited
category altogether, but achieve a broadly
similar effect by only prohibiting development
that is not ‘generally consistent’ with one or
more of the objectives of particular zones.
1390 Internals 03 20/12/05 3:33 PM
72 T H E E N V I R O N M E N TA L L A W H A N D B O O K
CASE STUDIES
Complementary and ancillary purposes
In Coffs Harbour Environment Centre Inc v
Coffs Harbour City Council (1991), Justice
Clarke of the Court of Appeal commented on
zone objectives that enabled development of
land for recreation purposes or purposes asso-
ciated with recreation. He said that they were
designed to permit developments which
may not promote public recreation in a
strict sense, but which may be
complementary or ancillary to a particular
recreational use of the land.
However, in what may be a misreading of the
decision in this case, Chief Justice Pearlman
of the Land and Environment Court adopted
the approach that a development will be held
to be consistent with the objectives if it is
not antipathetic to them, and it is not nec-
essary to show that the development pro-
motes or is ancillary to those objectives, or
even that it is compatible (Schaffer Corpora-
tion Ltd v Hawkesbury City Council (1992) 77
LGRA 21). See also Challister Ltd v Blacktown
City Council (1992) 76 LGRA 10; Hospital Action
Group Association Inc v Hastings Municipal
Council (1993) 80 LGERA 190; Russo v Kogarah
Council (1995) 86 LGERA 300.
Public participation
The legislation allows greater opportunity for
members of the public to participate in the
forward planning process than in the devel-
opment control process – that is, there is more
opportunity to comment on proposed instru-
ments than on specific development applica-
tions. Anyone can comment on draft LEPs (see
page 71), but in general the Act gives the public
the right to comment only on applications for
certain kinds of development, generally adver-
tised development and designated development (see
page 131).
Page 72
Public comment on advertised
development
One way for councils to ensure that the public
can participate in decision-making is to make
use of the provisions for advertised develop-
ment. There is a general category of advertised
development in the Wollongong LEP 1990, for
example: this allows development that would
previously have been prohibited to take place
in exceptional circumstances after public con-
sultation. Under previous planning practice, a
rezoning would have been necessary in order
for the development to go ahead.
Scheduled development
LEPs 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 public
authorities. Development consent is not required
for listed development when carried out by
these bodies, even if the zoning tables other-
wise appear to require it. Indeed, even if the
zoning tables actually prohibit the develop-
ment, the schedule allows it to go ahead. This
becomes important when considering the oper-
ation of Part 5 of the Environmental Planning
and Assessment Act (see page 229).
Definitions
Environmental planning instruments include
definitions of the uses set out in the columns
of the zoning table – for example ‘dwelling
house’, ‘car repair station’ and ‘home industry’.
Courts must often decide whether a council has
made the correct decision as to whether a par-
ticular proposal falls within one definition rather
than another (see also Woolworths Ltd v Pallas
Newco Pty Ltd (2004) NSWCA422).
In order to ensure that expressions and def-
initions are used consistently in NSW planning
instruments, a set of model provisions has been
devised, and LEPs usually adopt the definitions
spelt out in these (see page 88).
In some circumstances, LEPs adopt definitions
contained in other EPIs. SEPP 33–Hazardous
and Offensive Development, for example,
1390 Internals 03 20/12/05 3:33 PM Page 73
contains definitions of such terms as ‘offen-
sive industry’ and ‘hazardous industry’ that
override those used in LEPs.
Under amendments to the Environmental
Planning and Assessment Act, passed but not
commenced at the time of writing (September
2005), new sections 33A and 33B provide for
the staged standardisation of LEPs.
Development standards
LEPs contain development standards, which
specify requirements or fix standards in rela-
tion to the carrying out of development. Exam-
ples are given in section 4(1) of the Act; they
include 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 service
stations, drive-in theatres and drive-in take-
away food shops, often attract very detailed
development standards.
If a proposed development does not comply
with a development standard, it usually cannot
go ahead without modifications being made,
although SEPP 1 does allow for some flexibility
in such cases (see page 78).
Development standards can also be fixed
under the regulations.
Development standard or prohibition?
Sometimes there is a question whether a pro-
vision is a development standard (which can be
varied by a SEPP 1 objection – see page 78) or a
prohibition (which cannot). See Strathfield Munic-
ipal Council v Poynting (2001) 116 LGERA319.
Complying development
If a development can be addressed by a pre-
determined set of development standards, it is
known as ‘complying development’. Such devel-
opment can proceed after the council or a
3: LAND USE PLANNING 73
private accredited certifier has issued a com-
plying development certificate (see page 219).
Non-discretionary development standards
An EPI or regulation may identify certain devel-
opment standards as ‘non-discretionary devel-
opment standards’, which means that the
consent authority has limited powers when
considering an application for such develop-
ment (s.79C(2)).
Section 79C and other matters
Section 79C of the Act sets out matters that a
council must consider in all cases before granting
consent to development. LEPs may also cover
many other matters, including:
• conservation of items of environmental
heritage, such as historic buildings
• matters that councils must take into
account before granting consent to
particular kinds of development (see
page 163)
• whether a council must consult with
public authorities in particular cases, and
whether the authority has the power to
veto certain approvals
• whether certain types of development, for
example advertised development or
designated development, require additional
or different consideration and
determination.
Development control plans
Development control plans can deal with exactly
the same matters as LEPs and REPs, but in more
detail (ss.51A(1), 72(1)). A council can also make
a development control plan if it wants to:
• identify development as advertised
development (see page 154)
• make additional notification or advertising
requirements for certain types of
development
• specify matters it must take into account
in making orders, in addition to the
matters listed in the regulations.
1390 Internals 03 20/12/05 3:33 PM
74 T H E E N V I R O N M E N TA L L A W H A N D B O O K
In practice, development control plans gener-
ally cover such matters as foreshore develop-
ment, car parking and landscaping.
Legal status of development
control plans
Unlike EPIs, provisions in development control
plans are not legally binding on decision-makers
who are considering projects. They are simply
factors to be taken into consideration before a
decision is reached. The increased use of devel-
opment control plans, therefore, is another step
in making the planning process more flexible.
Nevertheless, development control plans
must generally conform to the provisions of
the relevant EPI, or they will be declared invalid
(ss.72(3), 51A(3); Guideline Drafting and Design
v Marrickville Municipal Council (1988) 64 LGRA
275). At the local level, a development control
plan dealing with notification or advertising
may add to the notification and advertising
requirements of the regulations, but not replace
or reduce those requirements (s.72(1A)). Cri-
teria for giving orders listed in a development
control plan must be consistent with the cri-
teria specified in the regulations (s.72(1B)).
Councils are not bound to comply with their
development control plans when considering
a development application, but must treat them
as a fundamental element in the decision-
making process (see Zhang v Canterbury City
Council 115 LGERA 373).
Under the amendments to the Environmental
Planning and Assessment Act, passed but not
commenced at the time of writing (September
2005), section 72 is omitted and a new
Division 6 is inserted dealing with development
control plans.
Council codes and policies
Council codes and policies deal with the same
kinds of subject matter as development control
plans, but they are not made in accordance
with the procedural requirements necessary for
Page 74
making a development control plan. A code
that has been made in accordance with these
procedural requirements is in fact a develop-
ment control plan. Council codes and policies
have no official status under the Environmental
Planning and Assessment Act, although they may
be taken into account when a decision about
development is being made.
Regional environmental plans
REPs can only be made where the Minister for
Infrastructure, Planning and Natural Resources
is of the opinion that the matters they deal
with are of significance for a region, or part of
a region (s.51(2)).
The minister has a very broad discretion to
determine precisely what constitutes a region
(s.4(6)). Some regions include a number of local
council areas (for example, the Hunter REP
1989, which covers over 34 000 square kilo-
metres including 14 local government areas
and a population of over half a million). In
the Sydney region, however, many REPs apply
only to part (sometimes a small part) of a
single council area (for example, Sydney REP
5–Chatswood Town Centre and Sydney REP
24–Homebush Bay Development Area). By com-
parison, Sydney REP 20–Hawkesbury/Nepean
River (No 2–1997) applies to land in 15 local
government areas.
There is a list of all REPs currently in force
(September 2005) on page 99.
Types of REPs
Regional environmental plans can take a number
of forms.
REPs that set planning controls
Many REPs are surrogate LEPs, covering areas
in which the Department of Infrastructure,
Planning and Natural Resources wants greater
planning input than it would otherwise have
in order to facilitate development or to protect
a sensitive environment. The degree of state
intervention varies. Many REPs interfere only
1390 Internals 03 20/12/05 3:33 PM Page 75
with council discretion at the forward plan-
ning level and retain the council as the consent
authority (for example Sydney REP 17–Kurnell
Peninsula). Others remove council powers alto-
gether by making the minister or the Director
of Planning the consent authority (for example
Sydney REP 11–Penrith Lakes Scheme).
How REPs are made
1 The Director of Planning decides or is
required by the minister to prepare a draft
plan (s.40).
2 Where required, the director prepares an
environmental study after notification to
councils, advisory bodies and public
authorities (ss.41, 45–46, 74(2)(a)).
3 A draft plan is prepared after notification to
councils, the Local Government Liaison
Committee and public authorities (ss.44–46).
4 The draft plan and environmental study are
exhibited, and submissions invited (s.47).
During this period, anyone may make
written submissions (s.48).
5 The director considers any submissions
received, and may order an inquiry (s.49).
6 The director makes any amendments
considered necessary, and may (but need
not) re-exhibit the amended plan (s.49).
7 The draft plan with any amendments and
the director’s report is submitted to the
minister (s.50).
8 The minister makes a decision in relation to
the plan (s. 51).
REPs that set planning parameters
A second category of REPs does not specify
detailed development controls but outlines how
councils must exercise their discretion. Sydney
REP 19–Rouse Hill Development Area, for
example, spells out the kinds of zones and zone
objectives that must be included by councils
in LEPs for urban development release areas
intended to cater for 70 000 new dwellings,
but leaves it to the three councils affected to
apply them to precise areas.
Some REPs combine broader policy objectives
and detailed development controls that over-
3: LAND USE PLANNING 75
ride other EPIs. The Illawarra REP 1 spells out
ground rules in relation to the making of new
EPIs, focusing on such issues as the protection
of prime agricultural land and environmental
protection. The Kosciuszko REP seeks to develop
management initiatives by setting out proposals
for future action and coordination between
councils and other public authorities.
Specific-issue REPs
A third category of REP focuses on a specific
issue in a region, amending controls contained
in applicable EPIs. Sydney REP 7 loosens existing
controls by ‘spot rezoning’ parcels of surplus
government land in a number of local gov-
ernment areas to allow multi-unit housing.
Lower South Coast REP No 1, on the other
hand, restricts development by imposing a 14-
metre height restriction on buildings.
State environmental planning
policies
State environmental planning policies (SEPPs)
can only be made where the Minister for Infra-
structure, Planning and Natural Resources is of
the opinion that the matters concerned are of
significance for the state (Environmental Plan-
ning and Assessment Act s.39(3)). The provisions
in the legislation dealing with the content of
EPIs apply to SEPPs as well as REPs and LEPs.
How SEPPs are made
1 The Director of Planning decides or is
required by the minister to prepare a draft
plan (s.37).
2 The minister may publicise the draft plan
and consider submissions (s.39(2)).
3 The minister makes any alterations
considered necessary (s.39(1)).
4 The minister makes a recommendation to
the governor (s.39(1)).
5 The governor makes the policy (s.39(4)).
1390 Internals 05 20/12/05 3:29 PM Page 123

Development 5

126 When is development consent 178 Development contributions

required?
191 Appeals
130 Types of development
193 Modification, revocation and
135 Nonconforming uses implementation of consent
141 Development applications 198 Construction, occupation and
subdivision certificates
149 Procedure for granting consent
200 Enforcement of consents
152 Public participation
205 Major projects
159 Making the decision
171 Development consents
1390 Internals 05 20/12/05 3:29 PM
124 T H E E N V I R O N M E N TA L L A W H A N D B O O K
In this chapter, ‘the minister’ refers to the
minister administering the Environmental
Planning and Assessment Act 1979.
For the purposes of this discussion, a ‘project’
includes not only the erection of buildings or
other structures, but also such things as:
• clearing land
• spraying pesticides
• extracting water for irrigation
• discharging wastes.
In some cases, one project might consist of a
combination of activities.
A project may be carried out by any organ-
isation – a government body, private industry
or a farming cooperative, for example. It may
also be purely personal – for example, building
a home. In all these cases, the question is:
under what circumstances will the law permit
a particular project to go ahead?
In most cases, a project requires permission
from a particular public authority, following
an application by a developer. Certain activi-
ties are completely prohibited by law. For
example, prospecting for or mining uranium
in NSW is prohibited by the Uranium Mining
and Nuclear Facilities (Prohibitions) Act 1986
(s.7(1): see p. 629).
Generally, however, there is a reluctance to
take such an inflexible position. Many statu-
tory provisions appear at first sight to be
absolute prohibitions, but most provide that
some permission (a licence or consent) can be
sought for the activity in question. Even the
general prohibitions against harming threat-
ened species and damaging their habitat are
bypassed where prior permission has been
obtained (National Parks and Wildlife Act 1974
ss.118A, 118D). Other projects are not pro-
hibited altogether, but must be carried out in
a particular way or comply with certain general
requirements or ‘standards’. If, for example,
the project amounts to ‘development’, it will
usually have to comply with development stan-
dards set out in EPIs (see page 31). If it is a
Page 124
building, it will usually have to comply with
building standards contained in the Building
Code of Australia.
How many permissions
are required?
Ideally, only one application for permission
should have to be made to one decision-making
body. This is often not the case. The law may
regard a project as a number of activities, each
requiring the approval of a different decision-
maker under various pieces of legislation – and
if permission cannot be obtained for a partic-
ular activity, the whole project may collapse.
A new mine, for example, is likely to require
not only a mining lease, but also:
• an environment protection licence under
the Protection of the Environment Operations
Act 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, were
introduced at different times, and often little
attempt was made to reconcile them with pro-
visions that already existed.
Another explanation is that it is considered
appropriate for different bodies to make deci-
sions on different aspects of a proposal, often
because specific types of expertise are found in
particular parts of the bureaucracy. Sometimes
requirements differ because there is competi-
tion between public bodies or government
departments, because of the constitutional divi-
sion of power between state and Commonwealth
governments, or because of the political balance
of power between state and local government.
Integrating the permission process
Late in the 20th century, legislators had become
aware that the various permission requirements
caused problems and made some attempt to
integrate them – although not to cut down on
1390 Internals 05 20/12/05 3:29 PM Page 125

5: DEVELOPMENT 125

the number of permissions required. The Mining consent is required, it is in no sense pre-
Act 1992 contains extensive provision for inte- eminent. Other permissions must be obtained
grating the granting of mining titles with the if the law requires them. Development consent
provisions of the Environmental Planning and is only one of a number of overlapping project
Assessment Act. Amendments made in 1997 to control processes operating at present in NSW.
the Environmental Planning and Assessment Act
introduce the concept of ‘integrated develop-
ment’ into the development control system
(see page 131). The 1997 amendments also took
a step towards reducing the number of sepa-
rate approvals required by including building
and subdivision approval in the procedure for
acting on a development consent.
In 2005, a separate streamlined system for
the assessment of major projects was intro-
duced into the Environmental Planning and
Assessment Act (see page 205).

How permissions work

Some permissions seek to regulate projects as
an ongoing activity (for example environment
protection licences), while others focus on their
initial setting up (for example development
consent). Where a permission regulates an
ongoing activity, the decision-maker has much
greater power to impose conditions. A permis-
sion may also have to be renewed or reviewed
regularly: for example, environment protection
licences must be reviewed at least every three
years (Protection of the Environment Operations
Act s.78).
Permissions dealing with the initial setting
up of a project cannot be controlled to the
same degree, if at all, and ordinarily do not
have to be renewed. This means that they give
long-term enforceable rights to the person
obtaining permission.
It is commonly assumed that development
consent is somehow at the core of this complex
regulatory system – probably because develop-
ment consent is the commonest form of per-
mission encountered. But many projects do not
require development consent, even though they
may require permission under other legislation
(see chapter 6). Even where development
1390 Internals 05 20/12/05 3:29 PM
126 T H E E N V I R O N M E N TA L L A W H A N D B O O K
WHEN IS DEVELOPMENT
CONSENT 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 Planning
and Assessment Act apply unless the develop-
ment is a major infrastructure project or other
development to which Part 3A applies. An EPI
can require consent whenever it is empowered
to do so by sections 24 or 26 of the Act, and
these are very broadly worded (see page 70).
Since the 1997 amendments to the Act, the
term ‘development’ includes anything referred
to in section 26 that is controlled by an EPI.
In general terms, Part 4 of the Act establishes
a 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 which
Part 3A applies is discussed on page 205.
Zoning tables
In practice, development consent is most fre-
quently required by the zoning tables in local
environment plans (LEPs), although it would be
unwise to look only there. The whole of the
LEP should be examined in detail, along with
any regional environment plans (REPs) and state
environmental planning policies (SEPPs) that apply
to the land in question. Care must be taken,
because any EPI can amend, expressly or
impliedly, the provisions of a previous EPI
(Marchese and Partners Architects v Warringah
Council [2002] NSWLEC 41).
Zoning tables regulate development. Nor-
mally, one part or column of the table (usually
column 5 in older EPIs) indicates the purposes
for which development is prohibited. Even
then, it may be possible to obtain approval if
the development is declared by the minister
Page 126
to be a major project to which Part 3A applies.
Another part or column (usually column 4)
sets out the purposes for which development
can go ahead only after development consent
has been obtained. Before a decision can be
made as to whether development is permis-
sible with consent, two questions must
be 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 by
the regulations for the purposes of the defini-
tion’ – that is, something is not development
if the regulations say it is not.
The reference in the definition to the mere
use of land being development must be read
alongside provisions that protect existing and
continuing uses (see pages 135–140).
Matters covered by section 26
The matters referred to in section 26 of the
Act 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, they
will amount to development. For example, in
Dames and Moore Pty Ltd v Byron Council [2000]
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5: DEVELOPMENT 127

NSWLEC 46 and Cameron v Lake Macquarie City • a movable dwelling or associated structure
Council [2000] NSWLEC 34, the court held that • a ‘temporary structure’ within the
conduct contrary to a tree preservation order meaning of the Local Government Act 1993.
made by the council was development that
In turn, a temporary structure is defined to
required consent because it was conduct con-
include a ‘movable structure’. In Cohen & Anor
trolled by an EPI.
v Wyong Shire Council [2005] NSWCA 46, the
What is a work? question was whether a shipping container
placed on land was a building that required
The expression ‘the carrying out of a work’ is
consent. In Garbacz & Ors v Morton & Ors (1999)
not defined in the legislation, and some cases
108 LGERA 251, the court held that a marquee
have dealt with this.
was neither a building nor a structure within
It seems that the concept of a ‘work’ is
the meaning of the Act because the marquee
‘intended to refer to something done to the
had none of the features of a fixture and the
land itself’ (Parramatta City Council v Brickworks
public interest did not suggest that every erec-
Ltd (1972) 128 CLR 1 at p. 24; Warringah Shire
tion, movement or demolition of a marquee
Council v May (1979) 38 LGRA 424). However,
should be the subject of a specific council
questions of degree are involved (see Parramatta
approval.
City Council v Shell Company of Australia Ltd
The question whether the erection of a minor
(1972) 26 LGRA 25). Activities associated with
structure constitutes development depends on
‘the ordinary and normal pursuit of an existing
whether the Act was intended to cover that
land use’ do not amount to the carrying out
type of structure (Mulcahy v Blue Mountains City
of a work (CB Investments Pty Ltd v Colo Shire
Council (1993) 81 LGERA 302). In Conomos v
Council (1980) 41 LGRA 270). Whether or not
Chryssochoides (1997) 97 LGERA 113, the court
land clearing or land filling amount to ‘works’
held that a set of sewer and drainage pipes on
will depend on whether or not the changes
the side of a residential building in a city suburb
brought about are substantial (Kiama Municipal
was a structure or part of a structure because
Council v French (1984) 54 LGRA 42; Warringah
‘their effect upon the amenity of the adjoining
Shire Council v May). In Kiama Municipal Council
neighbour is unreasonable in all the circum-
v French, it was held that dumping fill on land,
stances’. A similar approach was taken in
which had the effect of raising it by no more
Burwood Council v Russo (40145 of 1994, 14
than ten centimetres in order to improve the
March 1995), where corrugated iron sheeting
quality of vegetation for grazing, did not
was held to be a structure in a densely popu-
amount to a work. Instead it was a use of the
lated urban residential area.
land – cultivating fodder. Pesticide spraying is
Development comprising ‘a use of land’ refers
neither a work nor a use of land (Rundle v Tweed
to or includes incidental and associated uses
Shire Council (1989) 68 LGRA 308). A sediment
(North Sydney Council v Ligon 302 Pty Ltd (1996)
pond to serve a 17-lot subdivision was a ‘work’,
91 LGERA 352). Any person who uses land in
not a building (Williams v Blue Mountains City
some way carries out a development of it (Hill-
Council [2001] NSWLEC 73).
palm Pty Ltd v Heavens Door Pty Ltd (2004) 137
Erecting temporary and minor structures LGERA 57).
If a temporary structure is erected, does that
comprise the ‘erection of a building’ as defined Purposes of the development
in the Act? The Act defines a building to include Not all development requires development
part of a building and any structure or part of consent. Development for some purposes will
a structure, but excludes: be prohibited by the relevant zoning table in
• a manufactured home the EPI; development for others purposes will
1390 Internals 05 20/12/05 3:29 PM Page 128
128 T H E E N V I R O N M E N TA L L A W H A N D B O O K
be allowed without any need for consent. The
Land and Environment Court and the Court
of Appeal often deal with difficult questions
of classification, and the role of the courts has
been significantly expanded in recent times.
Whether development is permissible or pro-
hibited by an EPI is a fact, which the court
must determine for itself (Woolworths Ltd v
Pallas Newco Pty Ltd & Anor (2004) 136 LGERA
288; Chambers v McLean Shire Council (2003)
126 LGERA 7; Issa v Burwood Council 137 LGERA
221). Previously, the courts had held that this
was a matter for the consent authority acting
reasonably, and did not intervene in such deci-
sions unless they were unreasonable (Londish
v Knox Grammar School (1997) 97 LGERA 1).
Problems with classifying
development
Problems arise in relation to classification for
a number of reasons.
Terms and definitions
The purpose of development is usually spelt out
in zoning tables in terms of things like ‘dwelling
houses’ or ‘caravan parks’. The zoning tables
do not refer to actions such as ‘to dwell in as
a family’ or ‘to park caravans’. The things are
often defined in the definition section of the
EPI, or in any model provisions (see page 88)
that have been incorporated. Usually the defi-
nitions are expressed in terms of purpose, and
employ phrases such as ‘used for the purpose
of’ or ‘used for’ or ‘used as’. But sometimes they
are framed in terms of the design or structure
of a building (for example, ‘a building designed
for use as a dwelling for a single family’).
Sometimes particular purposes are defined
differently in different EPIs. This is especially
true of deemed EPIs (see page 68), which often
contain their own set of definitions. There are,
for example, a number of different definitions
of ‘dwelling house’. Attempts have been made
to have individual EPIs incorporate a standard
set of definitions contained in model provi-
sions. Most recently, in September 2004, the
Department of Infrastructure, Planning and
Natural Resources (now the Department of Plan-
ning) has released a working draft discussion
paper entitled ‘Standard provisions for local
environmental plans in NSW.’ The paper dis-
cusses a reform proposal for greater standard-
isation of the form, layout, zones, provisions
and definitions in LEPs.
References to other legislation
Sometimes a definition in an EPI refers to other
legislation, such as ‘development permissible
under the National Parks and Wildlife Act’. This
requires the courts to determine whether a par-
ticular proposal, such as refreshment rooms, is
an activity for which a lease or licence can be
granted 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 Wildlife
Act (1992) 78 LGERA 19; Friends of Pryor Park
Incorporated v Ryde City Council & Anor (1995)
89 LGERA 226).
Is a use specifically prohibited?
Another problem can arise if a type of use is
specified as permissible (for example, ‘com-
munity facilities’), but a specific use is prohib-
ited (for example, ‘childcare centres’) (see
Ashfield Municipal Council v The Australian College
of Physical Education (1992) 76 LGRA 151; Egan
v Hawkesbury City Council (1993) 79 LGERA 321;
Berowra RSL v Hornsby Shire Council (2001) 114
LGERA 345; RCM Constructions v Ryde City
Council [2004] NSWLEC 266).
Dual-purpose developments
Other problems arise when a development may
be 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 purposes
of an extractive industry is prohibited. What
if a farmer wishes to remove a mound of gravel
deposited by a river? Removal will make the
land available for agricultural purposes, but will
also provide the farmer with income, because
the gravel can be sold. Is the purpose of the
1390 Internals 05 20/12/05 3:29 PM Page 129
development the carrying out of agriculture or
the winning of material?
In such situations, the courts are wary of
deciding primarily on the basis of the inten-
tions of the developer, because some degree of
objectivity must be maintained. Impact on the
environment is important, but is usually con-
sidered later, when deciding whether or not
consent should be given, not at the earlier stage
of classification. Similarly, the courts do not
consider that a development should be pre-
vented simply because one of the purposes of
the development is prohibited.
Dominant or independent uses
The central issue is whether one of the pur-
poses is subordinate to a dominant purpose. If
it 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 large
takeaway liquor store was held to be ancillary
to the use of the premises for a conventional
bottle shop. Accordingly, the store was not a
‘drive-in takeaway establishment’.
If the purposes are independent, they must
be characterised and considered separately. If
one purpose is permissible and one is prohib-
ited, the development will be prohibited (CB
Investments Pty Ltd v Colo Shire Council (1980)
41 LGRA 270; Liauw v Gosford City Council
(2004) 136 LGERA 349). An ancillary use can
be an independent use: a convenience store in
a petrol station is ancillary to the petrol station
but is, nevertheless, an independent use
(Baulkham Hills Shire Council v O’Donnell (1990)
69 LGRA 404 at p. 410). A minor use cannot
be ignored simply because it is minor (Steedman
& Anor v Baulkham Hills Sire Council [No 2]
(1993) 31 NSWLR 562. The ‘independent
purpose’ test really does little more than beg
the question, and there does not seem to be
much predictability or principle in this area.
Each case depends on the particular facts and
the views of individual judges, which are fre-
quently not spelt out.
5: DEVELOPMENT 129
Policy questions
One basic policy issue is whether zoning tables
should make distinctions between broadly
similar types of development. An EPI may pro-
hibit development for the purpose of hazardous
industry in a residential zone, but should this
be extended to development for the purpose
of a boarding house or hostel in a zone where
other forms of residential development are
allowed? (See Burwood Municipal Council v Abo-
riginal Hostels Ltd (1979) 39 LGRA 150; Lorna
Hodgkinson Sunshine Home v Lane Cove Munic-
ipal Council (1979) 38 LGRA 282). Should not
decisions in such cases be made on a case-by
case-basis, taking into account the particular
circumstances? This is increasingly the case as
the state government pursues more flexible
approaches to environmental planning (see
page 71).
Overriding zoning tables
Other EPIs
Even where the purpose of a development has
been properly characterised, and it appears from
the zoning tables that the development is per-
missible if consent is obtained, that is by no
means the end of the matter. The zoning tables
may be overridden by other provisions in an
EPI. The EPI may identify the development
proposed as ‘exempt development’, in which
case development consent is not required (see
page 130). An EPI such as SEPP 4 (see page 79)
may apply, stating that the development does
not need consent. This illustrates the vital
importance of a full reading of all EPIs that
affect the land in question. A quick glance at
the zoning tables may give a completely mis-
leading impression.
Is development excluded from
an EPI?
Schedules to EPIs (for example, the one incor-
porated into the Environmental Planning and
Assessment Model Provisions 1980) sometimes
contain a list of developments excluded from
the general restrictions in the body of the plan,
1390 Internals 05 20/12/05 3:29 PM
130 T H E E N V I R O N M E N TA L L A W H A N D B O O K
including the zoning tables. The list often
includes certain kinds of development carried
out by public utilities supplying water, gas and
electricity, sewerage services, and transport. This
means that the listed development will not
require development consent. Even if the devel-
opment is prohibited under the zoning provi-
sions, the schedule means that the prohibition
has no effect. Development prohibited under
the zoning provisions, even if it is not listed
in the schedule, may also be able to be approved
by the minister in certain circumstances if it
is declared to be a major project to which Part
3A of the Act applies (see page 205).
Page 130
TYPES OF
DEVELOPMENT
Since the 1997 amendments to the Environ-
mental Planning and Assessment Act, the process
of classifying ‘development’ has been more
complex. In broad terms, the Act establishes
three types of development:
• development that does not need
development consent – that is,
development that may be carried out in
accordance with the relevant EPI (s.76(1))
• development that needs consent – that is,
development that must not be carried out
unless a consent has been obtained and is
in force, and is carried out in accordance
with the consent and the EPI (s.76A(1))
• development where an EPI provides that
the development is prohibited or cannot
be carried out on land with or without
development consent (s.76B).
Exempt development
Exempt development is development having
minimal environmental impact, specified in an
EPI (s.76(2)). Exempt development may be
carried out in accordance with the EPI without
consent, except on land that is critical habitat
or is part of a wilderness area within the
meaning of the Wilderness Act 1987. Part 5 of
the Environmental Planning and Assessment Act
does not apply to exempt development (s.76(3)).
The concept of exempt development was intro-
duced by the amendments to the Environmental
Planning and Assessment Act in 1997.
SEPPs 60 and 61 list certain kinds of exempt
development. The SEPPs apply only where
councils have chosen not to adopt a specific
exempt development schedule. Developments
such as barbecues, fences, playground equipment
and some advertisements are often included as
exempt development.
Development that does not need develop-
ment consent is not necessarily ‘exempt devel-
opment’. If it is not exempt development, Part