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Land use planning

3

66

Planning instruments and land use

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Plan-making

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Understanding the process

89

Case law: SEPPs and REPs

70

Environmental planning instruments

99

How to participate in plan-making

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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 procedures used to make them (see page 87).

PLANNING INSTRUMENTS AND LAND USE Control of land use through planning instruments is a fundamental concept in the management 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 decision-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 opportunities to participate in some forward planmaking. 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

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issues be addressed at the forward planning stage rather than the development application stage. It is currently proposed that if local environmental plans (LEPs) receive biodiversity certification, 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.

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 decision-makers (usually the local council or the minister). Other documents, such as development control plans and council codes or policies, 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 instrument jigsaw puzzle comprises: • The Environmental Planning and Assessment Act, particularly: – Part 3 (Environmental planning instruments)

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– 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 instruments regulate land is to zone land for different 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 management 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

– 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 collectively referred to as environmental planning instruments, 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.

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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 ordinances 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 Planning 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 government area, or one small block.

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 therefore 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 inconsistent REP or LEP was made later (s.36(2)). Similarly, 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 commenced at the time of writing, section 36 is changed so that generally SEPPs take precedence 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 Environment Centre Inc v Minister for Planning, it was argued that a LEP that fails to carry out directions 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).

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ENVIRONMENTAL PLANNING INSTRUMENTS Under the Environmental Planning and Assessment 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 utilising, 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 wideranging does not mean that they must be. In practice, much depends on the creativity of planners and the leeway allowed to local councils 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 discussion 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 particular 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).

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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

• 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 presented 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 category 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 development on the environment. The concern is with performance or effects, rather than classification (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.

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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 associated 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 necessary to show that the development promotes or is ancillary to those objectives, or even that it is compatible (Schaffer Corporation 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 development control process – that is, there is more opportunity to comment on proposed instruments than on specific development applications. 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 advertised development and designated development (see page 131).

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 development. 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 consultation. 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 developments to which its controls do not apply. Such developments primarily relate to the activities 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 otherwise appear to require it. Indeed, even if the zoning tables actually prohibit the development, the schedule allows it to go ahead. This becomes important when considering the operation 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 particular 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 definitions 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,

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contains definitions of such terms as ‘offensive 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 relation to the carrying out of development. Examples 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 takeaway 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 provision is a development standard (which can be varied by a SEPP 1 objection – see page 78) or a prohibition (which cannot). See Strathfield Municipal Council v Poynting (2001) 116 LGERA319.

Complying development If a development can be addressed by a predetermined set of development standards, it is known as ‘complying development’. Such development can proceed after the council or a

private accredited certifier has issued a complying development certificate (see page 219).

Non-discretionary development standards An EPI or regulation may identify certain development standards as ‘non-discretionary development standards’, which means that the consent authority has limited powers when considering an application for such development (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.

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In practice, development control plans generally cover such matters as foreshore development, 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 development 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)). Criteria for giving orders listed in a development control plan must be consistent with the criteria 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 decisionmaking 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

making a development control plan. A code that has been made in accordance with these procedural requirements is in fact a development 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 kilometres 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 comparison, 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

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with council discretion at the forward planning level and retain the council as the consent authority (for example Sydney REP 17–Kurnell Peninsula). Others remove council powers altogether by making the minister or the Director of Planning the consent authority (for example Sydney REP 11–Penrith Lakes Scheme).

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.

How REPs are made

Specific-issue REPs

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).

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 government areas to allow multi-unit housing. Lower South Coast REP No 1, on the other hand, restricts development by imposing a 14metre height restriction on buildings.

State environmental planning policies State environmental planning policies (SEPPs) can only be made where the Minister for Infrastructure, Planning and Natural Resources is of the opinion that the matters concerned are of significance for the state (Environmental Planning 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

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-

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)).

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Development

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When is development consent required?

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Types of development

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Nonconforming uses

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Development applications

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Procedure for granting consent

152

Public participation

159

Making the decision

171

Development consents

178

Development contributions

191

Appeals

193

Modification, revocation and implementation of consent

198

Construction, occupation and subdivision certificates

200

Enforcement of consents

205

Major projects

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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 organisation – 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 activities 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 statutory 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 threatened 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 prohibited 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 standards set out in EPIs (see page 31). If it is a

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 decisionmaker under various pieces of legislation – and if permission cannot be obtained for a particular 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 situation. 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 provisions that already existed. Another explanation is that it is considered appropriate for different bodies to make decisions 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 competition between public bodies or government departments, because of the constitutional division 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

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the number of permissions required. The Mining Act 1992 contains extensive provision for integrating the granting of mining titles with the provisions of the Environmental Planning and Assessment Act. Amendments made in 1997 to the Environmental Planning and Assessment Act introduce the concept of ‘integrated development’ into the development control system (see page 131). The 1997 amendments also took a step towards reducing the number of separate 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 introduced 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 permission 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 development consent is the commonest form of permission encountered. But many projects do not require development consent, even though they may require permission under other legislation (see chapter 6). Even where development

consent is required, it is in no sense preeminent. Other permissions must be obtained if the law requires them. Development consent is only one of a number of overlapping project control processes operating at present in NSW.

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WHEN IS DEVELOPMENT CONSENT REQUIRED? If an environmental planning instrument (EPI) requires that consent be obtained before a particular activity can be carried out, the provisions of Part 4 of the Environmental Planning and Assessment Act apply unless the development 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 infrastructure projects and other development to which Part 3A applies is discussed on page 205.

Zoning tables In practice, development consent is most frequently 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. Normally, 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

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 permissible 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 Assessment 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 development of a class or description prescribed by the regulations for the purposes of the definition’ – 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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NSWLEC 46 and Cameron v Lake Macquarie City Council [2000] NSWLEC 34, the court held that conduct contrary to a tree preservation order made by the council was development that required consent because it was conduct controlled by an EPI.

What is a work? The expression ‘the carrying out of a work’ is not defined in the legislation, and some cases have dealt with this. It seems that the concept of a ‘work’ is ‘intended to refer to something done to the land itself’ (Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at p. 24; Warringah Shire Council v May (1979) 38 LGRA 424). However, questions of degree are involved (see Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25). Activities associated with ‘the ordinary and normal pursuit of an existing land use’ do not amount to the carrying out of a work (CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270). Whether or not land clearing or land filling amount to ‘works’ will depend on whether or not the changes brought about are substantial (Kiama Municipal Council v French (1984) 54 LGRA 42; Warringah Shire Council v May). In Kiama Municipal Council v French, it was held that dumping fill on land, which had the effect of raising it by no more than ten centimetres in order to improve the quality of vegetation for grazing, did not amount to a work. Instead it was a use of the land – cultivating fodder. Pesticide spraying is neither a work nor a use of land (Rundle v Tweed Shire Council (1989) 68 LGRA 308). A sediment pond to serve a 17-lot subdivision was a ‘work’, not a building (Williams v Blue Mountains City Council [2001] NSWLEC 73).

Erecting temporary and minor structures If a temporary structure is erected, does that comprise the ‘erection of a building’ as defined in the Act? The Act defines a building to include part of a building and any structure or part of a 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 to include a ‘movable structure’. In Cohen & Anor v Wyong Shire Council [2005] NSWCA 46, the question was whether a shipping container placed on land was a building that required consent. In Garbacz & Ors v Morton & Ors (1999) 108 LGERA 251, the court held that a marquee was neither a building nor a structure within the meaning of the Act because the marquee had none of the features of a fixture and the public interest did not suggest that every erection, movement or demolition of a marquee should be the subject of a specific council approval. The question whether the erection of a minor structure constitutes development depends on whether the Act was intended to cover that type of structure (Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302). In Conomos v Chryssochoides (1997) 97 LGERA 113, the court held that a set of sewer and drainage pipes on the side of a residential building in a city suburb was a structure or part of a structure because ‘their effect upon the amenity of the adjoining neighbour is unreasonable in all the circumstances’. A similar approach was taken in Burwood Council v Russo (40145 of 1994, 14 March 1995), where corrugated iron sheeting was held to be a structure in a densely populated urban residential area. Development comprising ‘a use of land’ refers to or includes incidental and associated uses (North Sydney Council v Ligon 302 Pty Ltd (1996) 91 LGERA 352). Any person who uses land in some way carries out a development of it (Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 137 LGERA 57).

Purposes of the development Not all development requires development consent. Development for some purposes will be prohibited by the relevant zoning table in the EPI; development for others purposes will

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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 prohibited 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 decisions 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.

Natural Resources (now the Department of Planning) has released a working draft discussion paper entitled ‘Standard provisions for local environmental plans in NSW.’ The paper discusses a reform proposal for greater standardisation 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 particular proposal, such as refreshment rooms, is an activity for which a lease or licence can be granted under that Act (see Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710; Willoughby City Council v Minister 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).

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 definitions 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 provisions. Most recently, in September 2004, the Department of Infrastructure, Planning and

Is a use specifically prohibited? Another problem can arise if a type of use is specified as permissible (for example, ‘community facilities’), but a specific use is prohibited (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 development for the purposes of agriculture is permissible 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

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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 intentions of the developer, because some degree of objectivity must be maintained. Impact on the environment is important, but is usually considered 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 prevented simply because one of the purposes of the development is prohibited. Dominant or independent uses The central issue is whether one of the purposes is subordinate to a dominant purpose. If it is, it can be disregarded, and the development characterised by the nature of the dominant purpose (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157). For example, in Woolworths 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 prohibited, 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 frequently not spelt out.

Policy questions One basic policy issue is whether zoning tables should make distinctions between broadly similar types of development. An EPI may prohibit 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 Aboriginal Hostels Ltd (1979) 39 LGRA 150; Lorna Hodgkinson Sunshine Home v Lane Cove Municipal 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 permissible 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 misleading impression.

Is development excluded from an EPI? Schedules to EPIs (for example, the one incorporated 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,

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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 development is prohibited under the zoning provisions, 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).

TYPES OF DEVELOPMENT Since the 1997 amendments to the Environmental 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 introduced 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 development consent is not necessarily ‘exempt development’. If it is not exempt development, Part