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Planning Law

Planning law deals with the development of land for a particular purpose or its regulation to ensure it is used in accordance with permitted development. Over the years, planning law has become more complex – evolving in line with environmental issues and the need to balance public, social and cultural needs, and resources.

With many years’ experience in planning law and council decision-making processes, we are well placed to assist our clients through the complexities of property development. We advise on all aspects of the process, helping private clients and developers navigate the approval system to maximise the potential of their land. We work with planners, designers, architects, engineers, and other consultants to ensure as seamless a process as possible.

Land use in New South Wales

The Environmental Planning & Assessment Act 1979 (EPAA) is the primary legislation governing land use in New South Wales. It sets out the procedures for creating Environmental Planning Instruments (EPIs) which are used to manage and control the use of land.

EPIs include State Environmental Planning Policies (SEPPs) which relate to the whole or part of the state and deal with matters of state or regional planning significance; and Local Environmental Plans (LEPs) which apply to specified local government areas.

These policies are highly detailed and often overlap – in the case of a conflict, SEPPs will generally override LEPs and can amend certain provisions of a LEP. Understanding the effects of, and interplay between SEPPs and LEPs, is integral to the development application process.

Local Environmental Plans

Local Environmental Plans set out the permitted uses for specific parcels of land within a council area through zoning and development controls. They are prepared by the relevant local council and approved by the state government.

Categories provide for different zoning applicable to specified areas such as rural, residential, industrial, public recreational, conservation, etc. Each zone specifies the main purpose of that land and prescribes the types of development that are prohibited, permissible without consent, or permissible with consent.

LEPs can also reserve land for open space/roads or contain obligations to carry out management activities with respect to certain parcels of land. They also include pre-conditions applicable to certain developments and set development standards such as minimum lot sizes, density of development. and maximum building heights, etc.

Exempt developments

Certain types of development known as exempt developments do not need development approval. These are developments having minimal environmental impact as specifically identified in an EPI. Generally, unless the land is within a defined critical habitat area, environmentally sensitive area or part of a defined wilderness area, approval is not necessary. Examples might include fencing, barbeques, and some advertising.

Environmental Planning Instruments and existing use rights

Existing use rights arise when a new EPI changes the zoning of an area that makes the current use of a particular parcel of land otherwise unlawful. Use of the building or land must have been lawful immediately before the EPI prohibiting that use came into force. An existing use will usually prevail if:

  • it was lawful immediately prior to commencement of the new EPI;
  • the use was continuous and consistent at that time.

A 12-month break in continuity will abandon the use unless evidence to the contrary is established. Existing use rights is a complicated area of the law and expert advice on the legislative provisions would be of assistance in developing land which has the benefit of these provisions.

Developing property – how can we help?

Property development in New South Wales is governed by a matrix of legislation, regulations, planning instruments and policies administered at the state and local levels. As a complex area of law involving several moving parts, it is important to understand the relevant processes and pathways to achieve the proposed objectives of a development project and minimise costly mistakes.

The process of obtaining consent to develop property generally starts with the submission of a development application. This will require an analysis of the subject land and its zoning, the type of development sought and the interplay between the relevant state and local planning instruments.

A proposed development must be consistent with local, regional, and state planning objectives and policies, and address environmental and other implications such as access to new lots, the provision of open space or other facilities. Consideration will also be given to the capacity for existing utilities, services, and infrastructure to support the proposed development.

Local councils play a significant role and impact upon the future development of land and resources within their respective areas. They are responsible for carrying out the administrative functions of the approval and certification processes and may also need to consider any objections to a proposed development.

We can assist with:

  • Interpretation of planning controls
  • Development applications
  • Developer contributions
  • Building certification
  • Permissibility of development
  • Exempt and complying development
  • Liaising with local council and other government bodies

We also provide legal assistance and advice to clients to deal with development control issues such as:

  • Development control orders
  • Lodging submissions in relation to council notices
  • Civil enforcement matters taken by councils, including class 4 proceedings in the Land & Environment Court
  • Advice in relation to Penalty Infringement Notices (PINs) issued by council
  • Defending prosecutions commenced by council in the Local Court or in class 5 proceedings in the Land & Environment Court

If you need assistance, contact [email protected] or call 0409 007 794 for expert legal advice.