WHAT CAN I DO IF I OBJECT TO A PROPOSED DEVELOPMENT?

If someone nearby is seeking to develop a property you may have legal rights to object to the property being developed. The law does in some circumstances give rights to persons concerned about proposed developments to have their concerns considered. 

WHY DOES CERTAIN DEVELOPMENT AND BUILDING WORK REQUIRE APPROVAL?

Approvals are required for certain development or building work to ensure:

• urban, rural or business designs for particular areas are carried out;
• places of heritage importance are preserved;
• valuable agricultural land remains protected; or
• development or building work does not unnecessarily adversely affect the environment.

Since the commencement of the Environmental Planning and Assessment (Amendment) Act 1997 on 1 July 1998 all building work, whether it involves the erection or demolition of a building, is now regulated under the Environmental Planning and Assessment Act 1979. Approval is no longer required under the Local Government Act 1993. 

WHAT IS DEVELOPMENT?

The EPAA states that development means:

• the use of land;
• the subdivision of land;
• the erection of a building;
• the carrying out of a work; or
• any other matter act, matter or thing controlled by planning instruments created under the Environmental Planning & Assessment Act 1979.

WHAT IS BUILDING?

A building is defined in the Environmental Planning & Assessment Act 1979 to include any structure, other than a manufactured home, moveable dwelling or temporary structure.

The erection of a building includes:

• rebuilding, alterations, enlargement or extension of a building;
• placing or relocating a building on to land;
• enclosing a public place in connection with the construction of a building;
• erecting an advertising structure over a public land; or
• extending a balcony, awning or essential service pipe beyond the alignment of a public road.

WHAT GOVERNS WHETHER THE PROPOSED BUILDING WORK OR DEVELOPMENT REQUIRES APPROVAL?

Environmental planning instruments are documents produced under the Environmental Planning & Assessment Act 1979 by local and state government that specify what building work and other development does not require approval, does require approval or is prohibited in a particular area. In the case of building work some temporary provisions in Environmental Planning & Assessment (Savings and Transitional) Regulation 1998 are to be used with environmental planning instruments to control building work until 1 July 2000.

The local council in which the land proposed to be developed is located will be able to supply you with copies of the environmental planning instruments and temporary provisions that relate to the land. 

THE APPLICATION PROCESS

Where development consent is required for a development, an application must be lodged with the appropriate consent authority, usually the council for the area in which the land is located. The consent authority will then decide how the application should be processed by referring to the environmental planning instruments relevant to the proposed development and the Environmental Planning and Assessment Act 1979 and Regulations. The process will depend upon the type of development proposed. There are processes that enable members of the public or neighbours to make submissions and objections. 

WHAT TYPE OF DEVELOPMENT IS PROPOSED?

Councils are the bodies usually responsible for granting consent for developments although on some occasions it may be the Minister for Urban Affairs and Planning. Before analysing the ways in which you can oppose a proposed development, you must understand the different types of development.

There are three types of development:

• development that does not need consent;
• development that does need consent; and
• development that is prohibited.

Which category a particular development falls into depends on the planning instruments applying to the area in which the development is proposed. Planning instruments regulate and provide guidance on the development that may be undertaken in a particular area. There are three types of planning instrument:

State Environmental Planning Policy (SEPP) – These deal with matters of state environmental planning significance and are prepared at the state government level.

Regional Environmental Plans (REP) – These deal with matters of environmental planning significance at a regional level and are also prepared at the state government level.

Local Environmental Plans (LEP) – These are prepared at the local government level and reflect local issues.

You can inspect the planning instruments relevant to the property on which the development is proposed. The planning instruments will be available from the council so you should contact the council’s planning department for assistance in this regard.

The approval process and your rights to make submissions and objections depend on the type of development. 

Development that does not need consent:

If a development does not require consent it may be an exempt development. An exempt development is a development regarded by a planning instrument to be of minimal environmental impact. Exempt developments include items such as barbeques, fences, playground equipment and some advertisements.

Development that needs consent:

A person who wishes to carry out development that needs consent will have to lodge an application with the appropriate consent authority which is usually the council for the area in which the property is located. The procedures associated with obtaining development consent vary according to the type of development. The two broad categories of development that require consent are as follows:

State-significant development – this is a development for which the Minister of the Urban Affairs and Planning is the consent authority. State significant developments are considered to be of state importance. A development is deemed to be of state-significance either by a planning instrument or by a direction from the Minister.

Local development – this type of development includes any development that is not considered to be of state importance.

Within the two broad categories of state-significant development and local development there are sub-categories of development that have different approval procedures. These sub-categories include:

Complying development – This is a type of local development for which consent may be given by a council or a private accredited certifier granting a certificate according to pre-determined standards. There is no assessment of the merits of the development, so it cannot be challenged unless it fails to meet the appropriate standards specified in the certificate or that it should not have been regarded as a complying development in the first place.

Designated development – This is a type of development that is likely to have significant impact on the environment. Any application for designated development must include an environmental impact statement and maybe a species impact statement. Designated development mainly involves heavy industry with high pollution potential but also includes livestock intensive industries, mining operations, marinas and aircraft facilities.

Advertised development – This is a type of development that is specified under a planning instrument, regulations or development control plans to require some form of public notification before consent for the development can be obtained. Advertised developments may include a development for the purposes of conducting industrial or waste facilities, developments of state significance and developments that require approval under more than one piece of legislation.

Integrated development – This is a type of development that requires development consent under the Environmental Planning and Assessment Act as well as an approval, permit, licence or consent under other legislation such as the Fisheries Management Act, the Heritage Act, the National Parks and Wildlife Act, Rivers and Foreshores Improvement Act, Roads Act, Mine Subsidence Compensation Act and Protection of the Environment Operations Act.

It is important to note that the sub-categories of development listed above can overlap in some instances. For example, integrated development may also be advertised development. 

Development that is prohibited:

This type of development is not permitted under any circumstances except where a direction is given by the Minister, acting in the public interest, to allow a development application to be lodged in relation to the prohibited development. The Minister is the consent authority for applications in relation to prohibited development. 

THE APPROVAL PROCESS

For all the types of development that require consent except for complying development, the consent authority must consider:

1. Any applicable planning instrument;
2. Any draft planning instrument that is or has been placed on public exhibition;
3. Any development control plan. These are plans produced by a council to provide additional guidance when considering development applications. In relation to development applications they can:

• provide more detailed provisions in respect of land to which a Local Environmental plan applies;
• identify particular developments as being advertised development, and
• provide for notification or advertising to the public, a section of the public or particular persons (ie occupant of neighbouring properties) of a development application for specified development (other than designated development or advertised development) or an application for a complying development certificate.

4. The Environmental Planning & Assessment Regulations that apply to the land to which the development application relates;
5. The likely impact of that development, including environmental impacts on both the natural and man-made environments, social impacts and economic impacts.
6. The suitability of the site for development;
7. Any submissions from the public or otherwise made in accordance with Environmental Planning & Assessment Act or Regulations; and
8. The public interest.

Public Participation for Designated Development

As soon as practicable after a development application is made for consent to carry out what is a designated development, the consent authority must:

1. Place the application and any accompanying information on public exhibition for a period of not less than 30 days.
2. Give written notice of the application to :

• all people who appear to own or occupy the land adjoining the land to which the development application relates;
• as far as practicable, to other people who appear to own or occupy land that may be adversely affected if the designated development is carried out;
• to any other persons required by the regulations.

3. Written notice must contain:

• a description of the land on which the development is proposed to be carried out;
• the name of the applicant and the consent authority;
• a description of the proposed development;
• a statement that the proposed development is designated development;
• a statement that the development application and the documents accompanying the application may be inspected for a specified period during normal office hours at the consent authority’s principal office, at the Department of Urban Affairs and Planning’s offices, and the council’s principal office (if it is not the consent authority);
• a statement that any person during the period specified may make written submissions to the consent authority and that any submission made objecting to the development must specifically state the grounds of objection;
• the period for which the application may be inspected and submissions may be lodged;
• if the development is also integrated development, a statement to this effect, the approvals required, and the relevant approval bodies.

FURTHER INFORMATION

This Information Outline is provided courtesy of Yandell Wright Stell who are experienced in this area of law. They are located at Level 5, 139 Macquarie Street SYDNEY NSW 2000 or call them on (02) 9252-2278 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Yandell Wright Stell Lawyers is a result oriented firm as distinct from a procedurally-oriented firm. The result is achieving your goals as quickly and efficiently as possible and to your best advantage. Our firm through its professionals and support team supply legal services in the following areas of law: *Property law including conveyancing, property development and planning matters. *Commercial dispute resolution and litigation. *Immigration law including all visa applications. *Banking and finance law. *Intellectual property law including trade marks, copyright, designs and patents. *Telecommunications and information technology law. *Insolvency and bankruptcy law. *Corporate, commercial and business law matters. *Family law. We are centrally located in Macquarie Street, Sydney from where we are able to deliver first class results and personal service to all our clients.