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Land and Environment Court - Working Party
2. The Current System
Before examining options to improve current decision-making processes, it is useful to set out a brief summary of the existing planning framework within which these processes occur. This also provides an opportunity to correct some common misconceptions and highlight areas where there appears to be a need for greater education.
The remainder of the report will then consider each of the various stages in the planning process in turn, presenting the Working Party’s recommendations as to how they may be improved. A loosely chronological structure has been adopted, following the progress of a hypothetical applicant and development application through:
- processes preceding the lodgement of a development application with the local council (see chapter 3, Pre-Lodgement Processes)
- the assessment and determination of a development application by the council (see chapter 4, Council Processes)
- the way appeals to the Court are determined, including the nature of merits review and whether planning appeals should instead be confined to questions of law (see chapter 5, Appeals to the Court)
- options for reviewing council decisions, including whether the Land and Environment Court should continue to conduct merits review in planning appeals (see chapter 6, Options for Review of Council Decisions)
- the composition of the Court in deciding planning appeals (see chapter 76, Composition of the Court)
- processes associated with the conduct of planning appeals in the Court (see chapter 87, Court Processes)
- powers of the Court in deciding planning appeals (see chapter 98, Powers of the Court)
2.1 The existing planning framework: a brief summary
2.1.1 Overview
The New South Wales planning system seeks to promote the effective use and management of land and resources within the State in light of social, economic and environmental considerations. The legal framework of the planning system is provided by the Environmental Planning and Assessment Act 1979. The objects of the legislation include the promotion of the sharing of responsibility for environmental planning between State and local government and the provision of increased opportunity for public involvement and participation in environmental planning and assessment (Environmental Planning and Assessment Act 1979 s 5).
Development is controlled through a two-stage process:
- Plan-making: Environmental planning instruments made in accordance with Part 3 of the Environmental Planning and Assessment Act 1979 establish rules and standards as to where, what type of, and how development is permitted (for example land use zoning and development standards).
- Development assessment: Proposed development is assessed against the provisions of applicable environmental planning instruments and in consideration of the general matters listed in section 79C of the Environmental Planning and Assessment Act 1979 (such as the public interest).
2.1.2 Plan-making
Part 3 of the Environmental Planning and Assessment Act 1979 provides for the making of the following types of environmental planning instruments:
- State environmental planning policies (‘SEPP’s)
- regional environmental plans (‘REP’s)
- local environmental plans (‘LEP’s)
SEPPs, REPs and LEPs are made by the Minister and, once published in the Government Gazette, have the force of law. SEPPs and REPs are prepared for submission to the Minister by State government. LEPs are prepared by local councils under the supervision of the Department of Urban Affairs and Planning and submitted to the Minister for approval.
Two other types of plans may be made under the Environmental Planning and Assessment Act 1979, but these do not have the force of law:
- development control plans (DCPs)
- section 94 contributions plans
DCPs are made by local councils in accordance with the procedures prescribed in the Environmental Planning and Assessment Regulation 2000. They must conform to the provisions of any LEP applying to the land to which they apply. DCPs may, for example, contain additional details of the council’s intentions for the future character of a certain area or specify how applications for a certain type of development should be advertised. While section 79C of the Environmental Planning and Assessment Act 1979 requires DCPs to be taken into account when development applications are being determined, neither councils nor the Court are bound by their terms.
SEPPs, REPs and LEPs give consent authorities (usually the local council) the power to control development, and identify development which does not require consent and prohibited development. LEPs control development in a particular local government area or part of it. They are usually the most detailed of the three types of environmental planning instruments. LEPs commonly establish land use zones and impose development controls, and may also include provisions to conserve local heritage and protect environmentally sensitive land.
The making of environmental planning instruments and other plans under the Environmental Planning and Assessment Act 1979 generally requires the provision of an opportunity for public involvement and the consideration of views expressed by members of the public.
Taken together, the various plans represent a comprehensive system for the control of development throughout New South Wales.
2.1.3 Development assessment
Environmental planning instruments commonly require that development, other than very minor works, is permissible only with the consent of the local council (or other consent authority). Where such consent is required, the person who wishes to carry out the development must apply to the council, and the council must assess the application, in accordance with the requirements and procedures set out in Part 4 of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000.
Councils generally have a wide discretion as to how development assessment is conducted. However, the process will typically involve some or all of the following steps:
- pre-lodgement discussions
- submission of a development application
- public notification of the application
- assessment of the application
- determination of the application
- appeal to the Court
After a consent has been granted, it is possible to have it modified to permit minor alterations to the development. For this purpose, a modification application must be submitted to the council, which then carries out a “slimmed-down” version of the development assessment process to determine whether to modify the consent.
The Department of Urban Affairs and Planning has put together a plain English guide to the development assessment process, entitled Guiding Development: Better Outcomes.
Pre-lodgement discussions
There is no formal requirement for pre-lodgement discussion. However, it provides a valuable opportunity for the prospective applicant to find out about any rules that apply to the type of development proposed or the proposed site and any information that needs to accompany the development application.
Submission of a development application
The development application must provide sufficient information to the council to assess the proposed development in accordance with section 79C of the Environmental Planning and Assessment Act 1979 (as to which see below, Assessment of the application). A council may request additional information from an applicant within 25 days of receiving the application.
For most types of development, a council has 40 days in which to assess and determine the application before it is deemed to be refused (60 days where the application is for designatedIntegrated development is development that requires one or more statutory approvals (usually a licence or permit) as well as development consent in order for it to be carried out: see Environmental Planning and Assessment Act 1979 Pt 4 Div 5. or integrated development or development for which concurrence of a concurrence authority is required ). It should be noted that the time taken by an applicant to provide additional information at the council’s request is not taken into account in calculating the number of days in the assessment period.
Public notification of the application
The legislation requires that applications for particular types of development (such as designated development) must be advertised. In addition, councils may (and commonly do) specify in a DCP that applications for other types of development should be advertised or notified, and how this should be done.
Assessment of the application
Section 79C(1) of the Environmental Planning and Assessment Act 1979 lists the matters that a local council is required to take into consideration in determining a development application (so far as relevant). These include:
- any environmental planning instrument
- any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority
- any development control plan
- the regulations that apply to the land to which the development application relates
- the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality
- the suitability of the site for development
- any submissions made in accordance with the Act or the Regulations
- the public interest
It is common for the assessment of a development application to be carried out by council staff, who then provide a report to the council, and the council decides whether or not to grant development consent and if so, to what conditions the consent should be subject . Ordinarily, the council’s determination is based on the application and any other material provided by the applicant, the staff report,ing bureaucracy and any submissions received from members of the public. , Some councils also allow applicants and objectors to address a meeting of the council.
Some councils delegate the power to determine development applications to their staff in particular circumstances (for example where the proposed development complies with all applicable development controls and there have been no objections). Some councils provide alternative dispute resolution mechanisms to help applicants and objectors to try to resolve their differences.
Determination of the application
A local council may determine a development application by refusing to grant development consent, or by granting consent with or without conditions.
An applicant who is dissatisfied with a refusal or with conditions attached to a development consent may request that the council review the determination under section 82A of the Environmental Planning and Assessment Act 1979. There is also a right of appeal to the Court.
Appeal to the Land and Environment Court
An applicant may appeal to the Court, under section 97 of the Environmental Planning and Assessment Act 1979, against the council’s decision to refuse development consent, the conditions attached to a consent, or a deemed refusal of consent (as to which see above, Submission of a development application).
Objectors may appeal to the Court, under section 98 of the Environmental Planning and Assessment Act 1979, against the council’s decision to grant consent only where the proposed development is designated development.
In this report, the expression “planning appeals” is used to describe:
1. appeals brought by dissatisfied applicants:
(a)against a refusal to grant development consent, whether deemed or actual, or the conditions of a consent; and
(b)against a refusal to modify a development consent, whether deemed or actual (see below, Modification of consent); and
2. appeals brought by dissatisfied objectors against a council’s decision to grant development consent to an application for designated development.
Role of the Land and Environment Court
The Land and Environment Court Act 1979 establishes the Court’s jurisdiction to decide planning appeals, and sets out its powers and procedures for dealing with them.
Both judges and commissioners of the Court may decide planning appeals. Commissioners are appointed on the basis of their expertise in a field such as town planning, architecture, engineering, environmental science, or natural resources management. They need not be lawyers.
In deciding planning appeals, the Court is often said to “stand in the shoes” of the council which made the original determination. That is, an appeal is by way of fresh hearing on the merits. The Court is invested with all the functions and discretions of the original decision-maker. It is empowered to make any decision the original decision-maker could have made. Accordingly, it is not limited to the grounds of refusal stated by a council and applicants are not limited to the material placed before the council.
The Court has seven classes of jurisdiction, with planning appeals falling within Class 1. It is important to note that the Working Party was concerned only with planning appeals, and not the other classes of the Court’s jurisdiction.
Decisions of the Court are final. However, either party to a planning appeal may appeal against a decision on a question of law:
- where the decision was made by a commissioner, to a judge of the Court; or
- where the decision was made by a judge, to the Supreme Court.
Modification of consent
Once a development consent has been granted, the applicant may apply to the council to have the consent modified, under section 96 of the Environmental Planning and Assessment Act 1979, so long as the proposed development remains substantially the same.
As with the original development application, the council has 40 days in which to assess the modification application, and if a determination is not made within this period it is deemed to be refused.
Councils must advertise or notify modification applications in accordance with the Environmental Planning and Assessment Regulation 2000 and any applicable DCP, and submissions received in response must be considered. In determining such applications, councils are generally required to take into consideration the matters listed in section 79C of the Environmental Planning and Assessment Act 1979.
Dissatisfied applicants may appeal to the Court.
A local council may not modify a development consent granted by the Court. The modification application must still be submitted to the council, and the council must still advertise or notify it, however the application must be determined by the Court. |
