Environmental Planning and Assessment Act 1979

This Act saw the first major co-ordinated attempt by the Government of New South Wales to regulate zoning and planning in the whole of New South Wales. The Act repealed most of the planning control segments of the Local Government Act and abolished the New South Wales Planning and Environment Commission, replacing it with a Government department, initially named the Department of Environment and Planning.

The implementation of the new Act also signalled an intention to extend the scope of coverage of planning regulation to include an emphasis on the environmental impact of proposed development.

Administratively and procedurally, the new legislation also operated to replace the former modes of planning law and regulation, such as the local planning scheme ordinances which had been contemplated by the County of Cumberland Planning Scheme, with new forms of planning instruments, namely: State Environmental Planning Policies (SEPPs), Regional Environmental Plans (REPs) and Local Environmental Plans (LEPs). 

Section 149 Planning Certificates

Land use in New South Wales is governed by a number of regulatory bodies and environmental planning instruments. The starting point to ascertain the uses to which a property may be put is by obtaining a Certificate under Section 149 of the Environmental Planning and Assessment Act 1979 (EPA Act). This Certificate may be obtained from the local Council which governs the area in which the land is located. It is important to obtain a full certificate including the information that the Council is required to include both under Section 149(2) and Section 149(5) of the Act. 

Local Environmental Plans

A Local Environmental Plan is an instrument prepared by a Council and approved by the Minister in respect of the whole or any part of the land within the Council's area. The provisions of the Local Environmental Plan relating to a given parcel of land provide a detailed outline of the uses to which the land may be put, generally with the consent of the relevant determining authority. Local Environmental Plans may be obtained from Councils upon payment of a modest fee. 

State Environmental Planning Policies

State Environmental Planning Policies (SEPPs) are instruments created by the State Government to cover matters which in the opinion of the Minister for Urban Affairs and Planning are of significance for the Environmental Planning of the State. SEPPs generally serve to alter Local Environmental Planning instruments by either providing more restrictions, relaxing existing provisions or doing both of these things.

State Environmental Planning Policies are available from the New South Wales Government Information Service or may be accessed on the Internet at www.austlii.edu.au 

Regional Environmental Plans

Like State Environmental Planning Policies, Regional Environmental Plans (REPs) are prepared at State Government level. REPs may apply to all or part of a region. The Minister for Urban Affairs and Planning may declare any land to constitute a region. 

Development Control Plans

Development Control Plans are policy instruments which do not carry direct statutory force. Development Control Plans are intended to “flesh out” the provisions of Local Environmental Plans and, also, Regional Environmental Plans. They may be obtained from Councils on payment of a modest fee. 

Other Sources of Planning Regulation

In addition to the above types of planning instruments there are a number of other types or modes of planning regulation which may also need to be taken into consideration in a given situation. These include:

“Deemed Environmental Planning Instruments”:

Many local planning schemes and interim development orders made prior to the introduction of the EPA Act still remain in force, not having specifically been repealed under the new Act or any Environmental Planning Instrument (EPI) made under the new Act.

Ministerial Directions and Determinations:

Under Section 117 of the EPA Act, the Minister may direct a Council to exercise its functions in the preparation and review of local environmental plans. Section 71 of the EPA Act enables the Minister to make determinations of the format, structure and subject-matter of a local environmental plan.

Model Provisions:

The EPA Act provides for a mechanism whereby model (or standard) provisions may be directly incorporated by reference into an Environmental Planning Instrument, either wholly or partially. Therefore, if model provisions are adopted by a particular Environmental Planning Instrument, those model provisions must also be referred to (in addition to the particular EPI).

Council Policies, Codes and Guidelines:

Apart from Development Control Plans (referred to above) Councils may adopt various policies and/or formulate codes and/or guidelines to deal with various issues which require the Council’s determination. These do not, however, have legislative force and for this reason Councils may, in some circumstances, find that they are unable to compel compliance with the requirements set out in such documents. However, they still need to be taken into consideration, as a practical matter, regardless of this.

Management Plans:

The Local Government Act 1993, as well as other legislation such as the National Parks and Wildlife Service Act 1974, provide for the preparation and implementation of management plans relating to specific areas under the jurisdiction of the relevant legislation. These management plans may also have a bearing on any development proposed in such areas.

Departmental Circulars:

These are issued from time to time by the Department of Urban Affairs and Planning (and were also issued by its predecessors). Their purpose is primarily to assist Councils and others in the implementation and interpretation of the EPA Act and, although they are not legally binding, they are persuasive in the interpretation of EPIs, particularly when there is any ambiguity involved in that interpretation. 

INTERPRETING ENVIRONMENTAL PLANNING INSTRUMENTS

Zoning tables in Section 149 Planning Certificates

Section 149 Planning Certificates contain a statement as to the particular zoning of the property to which the certificate relates. They also contain a table detailing the uses land within that zone may be used for, without development consent and uses permitted only with development consent. Uses which are prohibited are also outlined. 

How Environmental Planning Instruments Inter-relate

Section 149 Planning Certificates also contain details of all Environmental Planning Instruments which apply to the land which is the subject of the certificate. Generally Local Environmental Plans provide for the zoning of land. A Local Environmental Plan will often contain or refer to a map showing the zones of the area which is covered by the plan. It will then have a table explaining what types of development are possible in each zone.

A Local Environmental Plan cannot be read in isolation. It is necessary to refer to any State Environmental Planning Policies which are relevant and to a lesser extent Regional Environmental Plans. What appears to be prohibited by a particular Environmental Planning Instrument may be exempted from prohibition by another Environmental Planning instrument.

In the event of an inconsistency between Environmental Planning Instruments, Section 36 of the EPA Act provides that there is no general presumption that:

• A State Environmental Planning policy prevails over a Regional Environmental Plan or a Local Environmental Plan; or
• A Regional Environmental Plan prevails over a Local Environmental Plan.

Section 36 however does provide that the provisions of a later instrument prevail over the provisions of an earlier instrument, unless the contrary intention appears. 

Restrictions contained in Local Environmental Plans which may not apply

There are circumstances in which land uses prohibited by a Local Environmental Plan may in fact be permissible under the terms of a State Environmental Planning Policy or Regional Environmental Plan.

There are many State Environmental Planning Policies and Regional Environmental Plans covering a wide range of topics. State Environmental Planning Policies and Regional Environmental Plans may be accessed at the New South Wales State Government Website.

State Environmental Planning Policy No. 1 (SEPP No.1) can assist to overcome strict compliance with development standards contained in planning instruments. This policy may be used by making an application (called an "objection") containing submissions to the effect that the relevant consent authority should dispense with the relevant development standard on the basis that its application in the particular circumstances would be unreasonable or unnecessary.

It is important to use the correct statutory wording when making a SEPP No. 1 objection. It should preferably be made simultaneously with a Development Application in respect of a given parcel of land. 

Limits on what is permitted by Local Environmental Plans

A Local Environmental Plan may seem to allow land use which is, in fact, not permitted. In addition to overriding restrictions which may be imposed by State planning instruments, Development Control Plans may, in practice, further define and narrow permissible land uses in a given area.

In order to be legally valid, a Development Control Plan must generally conform with the provisions of the Local Environmental Plan or Regional Environmental Plan to which it relates. Development Control Plans are designed to elaborate on what is contained in Local Environmental Plans and to further define the purposes for which land may be used.

Consent Authorities (usually the local Council, but can also be some other Statutory Authority or the Minister, in some cases) are not bound by the provisions of Development Control Plans and accordingly it is not necessary to make a SEPP No. 1 Objection if a Development Application does not comply with a Development Control Plan.

It is important to be aware however that Councils generally tend to adhere to the provisions of Development Control Plans that they have made. 

Council Policies

Council Policies generally do not have any legal status as Environmental Planning Instruments. It is important to have regard to them as they are generally taken into account by Councils when determining development applications. Council Policies are often referred to in Section 149 Planning Certificates, however it is important to check whether there is a council policy relating to a proposed Development Application prior to lodgement. 

Changes of use for which consent is not required

State Environmental Planning Policy No. 4 details a number of changes of use in respect of which no consent is required from Councils.

It is necessary, however, to inform the Council of such a change of use. The Council will sometimes issue a “consent” to the change of use, however Councils are not obliged to do this and consent is not legally required. 

Exempt and Complying Development

There are also certain other types of development that do not require development consent under an EPI: namely, "exempt development" and "complying development".

An EPI can provide that specific types or classes of development which have a minimal environmental impact are exempt development. Exempt development can be undertaken without development consent, unless the subject land is critical habitat or part of a wilderness area under the Wilderness Act 1987.

An EPI can also provide that certain local development which is capable of being addressed by specified predetermined development standards is complying development, and therefore does not require development consent. Particular types of development, including State significant development, designated development and development on land comprising or containing an item of environmental heritage, among others, cannot be complying development. 

EXISTING USE RIGHTS

Any summary of the Law of Zoning and Planning in New South Wales would be incomplete without including a reference to existing use rights.

What are “Existing Use Rights”?

Existing use rights become an issue when an Environmental Planning Instrument (EPI) which changes the status of a particular development and/or the zoning of a particular area, comes into effect. The EPI may stipulate that the particular current use is prohibited.

If the “existing use” is a use for a lawful planning purpose immediately before the coming into force of an EPI which has the effect of prohibiting that use, then that existing use is permitted to continue under the provisions of Section 107 of the Environmental Planning and Assessment Act (EPA Act). 

Why are Existing Use Rights Required?

The policy behind existing use rights attempts to balance the potential significant economic hardship and dislocation that would or might result to land owners or occupiers who are required to discontinue uses in order to conform with a new EPI, with the need to continue on with the co-ordinated planning of an area or region regardless of what might in effect be certain zoning anomalies.

For example, a single factory may have been erected some forty years ago in a then undeveloped area. The recent increasing demands of a growing urban landscape now require the surrounding undeveloped land to be used for residential purposes as, perhaps, a new suburb.

Provided the factory use was a lawful use immediately prior to the new EPI's rezoning of the land as residential land, this industrial use would be an existing use and would not be rendered unlawful by reason of the fact that the new EPI prohibits industrial uses in that area. 

Will Existing Use Rights Always Apply?

The short answer to this question is: No. Existing use rights represent a significant concession by the regulatory authorities. The concession is, however, constrained within reasonably narrow limits. Therefore, for example, the existing use rights concession only applies if the relevant use was one that was commenced with consent (if consent was required under the previous planning law) or it was a lawful use which did not require consent under the previous planning law.

This means that a use which did not conform with the requirements of the previous planning law at the time the new EPI prohibiting the use came into force, would not be protected by Section 107.

Even more significantly, from a practical perspective, is the fact that existing use rights will generally be lost if the use is abandoned. A particular use is presumed to be abandoned if it is not used for a continuous period of twelve months (unless the contrary is established). The person relying on the existing use has the onus of proving that the use existed and also that it has not been abandoned.

What should I do if Existing Use Rights may apply?

Much of the case law relating to existing uses concerns the issue of whether or not an existing use has been abandoned. This is a complex area and professional legal advice should be sought if you seek to rely on existing use rights. 

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.

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