In July 2011 a full review of the NSW planning system was announced. It is expected that this will result in new state planning legislation.
As at the date of publication, the Environmental Planning and Assessment Act 1979 (EPA Act) and Environmental Planning and Assessment Regulation 2000 currently set out the planning, development and assessment controls for land use in NSW. Under the Act, two types of environmental planning instruments can be made that regulate development and land use. These are:
- state environmental planning policies (SEPPs) that apply to large areas or the whole of NSW
- local environmental plans (LEPs) that cover local council areas.
Local councils prepare the LEP for their local area. It contains zoning details and development controls, prohibited developments as well as heritage provisions that apply in that area. The council may also make a development control plan to help achieve the objectives of the LEP.
The Act also sets out various categories of development. They include state significant development, state significant infrastructure, designated development, advertised development, integrated development and complying development. These categories have different development requirements and different procedures for obtaining development consent. A SEPP or LEP deals with major or specific projects in your neighbourhood according to these categories.
In most cases the relevant authority that must give consent to a development is your local council. In some instances, development consent must be obtained from the Minister.
Environmental Planning Instruments (EPIs)
To access current environmental planning instruments, such as the LEP for your local area, go to NSW Legislation.
Tips for finding a current EPI:
- Click on the Browse tab
- Go to EPIs under Browse in Force and select the relevant letter of the alphabet
- Scroll down and click on your relevant plan or policy
- Click on the title in the left hand column to bring up the full text in the main window.
These are text only documents and do not contain maps. Maps can be viewed at your local council or in some cases, on the council’s website.
To find out the environmental planning instruments that apply specifically to your property you can obtain a section 149 Certificate from your local council. Fees apply. The Certificate will list the zoning and relevant development and planning controls including any prohibited developments and will list any SEPPs that apply to your property.
Generally, if you want to build, extend, subdivide or change the use of your land you will need to apply for development consent by lodging a development application with your local council. Certain minor works may be regarded as exempt development and will not require consent. Other types of minor works are fast-tracked through a complying development process. To find out if your project will require development consent it is important to check with your local council.
When you lodge a development application with your local council, section 79C of the EPA Act specifies certain matters that must be considered by the council when deciding an application. Some of these are:
- the provisions of any environmental planning instrument (any SEPP or LEP) that applies
- the provisions of any development control plan that applies
- the relevant regulations that apply
- the likely impacts of the development on the locality, including environmental impacts on both the natural and built environment and the social and economic impacts
- the suitability of the site for the development
- any submissions, for example objections to the application, made in accordance with the Act and regulations, concerning the development
- the public interest.
Anyone can object, or make a submission, to the council concerning a development application. If you wish to object to a neighbour’s application, it’s a good idea to familiarise yourself first with the whole of their development application and also the relevant environmental planning instruments that apply.
Some common reasons for neighbours objecting to a development application are that it:
- does not comply with the LEP requirements
- will increase traffic congestion and parking problems
- will block the sunlight or view
- is out of character or scale with its surroundings or the area
- may cause noise or air pollution or may damage the neighbours land during construction
- contravenes a private right of an adjoining owner (see box below).
Development consent is often given subject to certain conditions (EPA Act, section 80A). These conditions may regulate how the land is to be used or how the work is to be carried out or may limit the time period for the construction. They can be very detailed.
If you find that the conditions of the consent are not being observed and you are being inconvenienced, contact the person responsible for the work or contact the council and ask that they enforce compliance with the conditions. Under section 123 of the EPA Act you can also apply to the Land and Environment Court for an order to stop or restrain the activity that, by contravening the conditions of consent, is in breach of the Act.
The Act also contains appeal provisions. In general, under sections 82A-83, if the person who made the development application is unhappy with the council’s decision, they can apply to council for a review of the decision. Under sections 97-99 the Land and Environment Court can also hear an appeal of the council’s decision. Time limits apply.
The appeal of a development decision by a person objecting to the development is limited. It is available in some instances, for example where it concerns a designated development or some of the state significant developments. Time limits apply. Again, under section 123 of the Act a person can still bring an action to remedy or restrain a breach of the Act.
If your neighbour is carrying out works on their land without obtaining council approval, contact the council. If the council does not take action to prevent the illegal use, under section 123 of the EPA Act, anyone can apply to the Land and Environment Court for an injunction, that is, an order stopping the activity.
If you believe that a proposed development in your neighbourhood raises a significant legal issue or poses a serious threat to the environment or the public, contact the specialist community legal centre, the Environmental Defender’s Office.
Private rights of adjoining owners
These are usually documented as covenants or easements and are recorded on the Certificate of Title of the land. An example is where several landowners in a street make an agreement not to build above a certain height. This is called a restrictive covenant. In the 2008 case of Lennard v Jessica Estates Pty Ltd  NSWCA 121 the NSW Court of Appeal decided that local planning laws like an LEP can in some circumstances override a restrictive covenant.
Another private right of adjoining owners is a cross easement for support. With terrace houses, there is usually an implied or else an explicit agreement between neighbours to maintain shared supporting walls. This type of easement may or may not be recorded on the Certificate of Title.