The NSW Government has reviewed how Local Environmental Plans (LEPs) work in guiding planning decisions for local councils through zoning and development controls. RMB Planning Lawyer TANYA EMMETT explains that a new appeal process and other improvements will result from the review:
The Environmental Planning and Assessment Act 1979 (EP&A Act) sets out the process for the making of Local Environmental Plans (LEPs), which provide a local framework for the way that land can be developed and used.
The Act also establishes a mechanism for LEPs to be amended.
Amendments are often sought to change the permissible use in an area to allow a different type of development or to enable higher residential densities to be achieved.
The procedure involves a council, as the planning proposal authority, preparing an explanation and justification for the amendment to the LEP, known as a planning proposal.
If supported by a council, a planning proposal is prepared and submitted to the NSW Department of Planning, Industry and Environment (DPIE) for consideration. If supported by DPIE, a gateway determination will be issued.
This gateway determination will appoint the relevant local council as the local plan-making authority to carry out functions with respect to the planning proposal, such as placing it on public exhibition, consulting with relevant authorities and reviewing submissions received, as well as time frames for completion of the amended instrument.
Advancing a planning proposal to the point of gateway determination often involves considerable time and expense on the part of a proponent, with no guarantee that the proposal will be successful, even if a gateway determination is issued.
The EP&A Act allows a council as planning proposal authority to vary a proposal or to not proceed with a planning proposal. The effect of this is that, following a gateway determination in favour of a planning proposal, a council may then seek to vary the proposal or decide to not continue with it for any reason.
This leaves proponents of planning proposals with limited control over the process, leading to uncertainty which may affect the viability of their projects.
Currently, there are two review pathways available in respect of planning decisions. The first enables a proponent to request a review in circumstances, such as the council not supporting a planning proposal or failing to advance the planning proposal within a specified timeframe. The second mechanism, known as a gateway review, is available to councils and proponents if DPIE determines not to proceed with a planning proposal or where it has determined that it be resubmitted or varied.
However if the request for review is rejected, no further review or appeal mechanisms are available.
In mid-2021, the NSW Government announced its NSW Planning Reform Action Plan, part of which aims to simplify the rezoning process and provide merit appeal rights to proponents in rezoning matters.
A discussion paper entitled ‘A new approach to rezonings’ was recently placed on public exhibition. The paper, among other things, seeks to create a new class of appeals for rezoning matters either in the NSW Land and Environment Court or by the Independent Planning Commission.
The paper also proposes timeframes for completing each step in the rezoning process, the introduction of fee structures, the clarification of the roles of parties in the process, including giving greater rights to private proponents and referring the assessment and determination of private proponent rezoning applications back to councils.
DPIE intends to introduce the new changes later in 2022.
If you require further information about land rezoning and reviews, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.