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By Tom Williams, Solicitor
At some time, every business owner will have to deal with planning and development
laws. Whether selecting premises for the first time, either as a tenant or
purchaser, or extending an existing building to accommodate growth - or even
hanging a sign outside your shop, it will be necessary to take into account
the development controls affecting the property. Working out which controls
do what can be like trying to navigate a maze without a compass.
These are just a few of the signposts that may help to make the path clearer.
In New South Wales, development is governed by the Environmental Planning and Assessment Act. Under the Act, development is not confined to construction; it also includes how land is used, how land is sub-divided, what can be built on the land and what can be demolished.
Administration of the Act can be carried out at either State or Local government level. Development controls are contained within a variety of documents known as Environmental Planning Instruments (EPIs). Land in New South Wales can be affected by any one or all three of the following EPIs. Each may play a role in determining what can be built on the land, what it can be used for or what ‘activities’ can be carried out and whether or not consent is required.
In simple terms, the hierarchy of EPIs is as follows:
1. State Environmental Planning Policies – SEPPs – which
reflect a particular policy
concerning development in the State as a whole;
2. Regional Environmental Planning Policies – REPs – which
apply to any area of
land that the State government considers to have regional significance;
3. Local Environment Plans – LEPs;
4. Development Control Plans – DCPs.
Planning instruments produced by local governments generally reflect the broader policies contained within the State instruments but are modified to suit the local shire or municipality. Generally, it will be the LEPs and DCPs which will have the greatest impact on development for businesses.
LEPs may be regarded as the ‘master plan’ for the municipality; it takes a big picture view and divides the land into zones where different types of development will be permitted. The LEP may also prohibit certain kinds of development and allocate specific areas to be retained for open space or designated for heritage or conservation protection.
DCPs supplement the provisions of the LEP and contain more detailed controls for particular developments. They may apply to specific sites within the area, outline the standards which will apply to exempt and complying development, or provide controls for managing contaminated land or the use of footpaths for commercial activities.
A property may be affected by all three sets of controls. Where there is any conflict between the various instruments, as a rule the most recent will apply. On a day-to-day basis, LEPs and DCPs will have the greatest influence on what you can and can’t do, but from a commercial perspective, there are two SEPPs that need to be considered.
SEPP No. 22 deals with shops and commercial premises. It allows for a change of use, from one kind of business to another, in a business zone even if that new use is prohibited under another planning instrument. Consent must be obtained for the change of use and will be granted where the change will have only a minor environmental effect. Note, however, that consent to a change of use cannot be granted if the building is to be used as a brothel.
SEPP No. 64 on the
other hand, sets out the controls for advertising and signage throughout
New South Wales. The aims and objectives of
the policy
are described
in Clause 3 as to ensuring that signage, including advertising, is
compatible with the visual character of an area, provides effective
communication
in suitable locations and is of high quality design and finish.
For most developments that are affected by SEPPS the appropriate
consent authority will be the local council.
If you are considering moving into
your first commercial premises, either as a tenant or an owner, it is essential
that you first
obtain an s149
Certificate from the local council. This will contain information
about:
• The various EPIs that apply to the property;
• Permitted and prohibited uses;
• The zoning of the land ie for commercial or residential purposes
or as a designated
• heritage area;
• The types of development that do not require consent;
• Developments that are prohibited.
This information is vital for assessing whether a particular property
will be suitable, both in the short and long term, for your business.
Local councils are usually the consent authorities for local development. Remember, the use of the land is development for consent purposes so if it is proposed to use land for an activity which is different from its present use, council consent will be required. Even seemingly minor changes in use, such as from a retail to wholesale business – can require a development application to be submitted.
Consent will also be required to erect any advertising signs on the building, put tables and chairs on the footpath or, in some cases, extend the trading hours of the business.
Before lodging a development application, there are a number of matters to consider, for example:
Is the development
permitted without consent?
Non-structural alterations to buildings or the
installation of a clothesline or dividing
fence are works that do not
require consent.
Is the development permitted with consent?
The relevant EPI may provide that
certain types of development require consent. The instrument may also specify
which is
the relevant consent
authority,
whether an environmental impact statement is required and
the rights of the public
to participate in the approval process.
Is the development ‘complying
development’?
This is routine development which can be certified either
by a council or an accredited certifier. If the proposal
satisfies
pre-determined
standards then
consent must be granted within 7 days. The ‘catch’ with
this kind of development is that there is no avenue of
appeal against the decision of the
council or certifier.
A development application must be
submitted by either the owner of the property or a person
authorised by the owner
in writing.
The
Environmental and Planning
Act Regulations set out a list of the information and documents
that must be provided with any application and prescribes
the fee for
processing.
Required documents include a site plan of the land, a sketch
of the development, a statement of environmental effects,
and an A4
plan
of any building
that is to be erected - showing its height and external
configuration in relation
to
its site.
The approval process can be slowed down considerably if the documents are incorrect, inadequate or not supplied at the time the application is lodged. It is therefore recommended that the services of professionals, such as engineers and architects, be retained to make the process as smooth as possible. Often, it can be helpful to discuss the proposal with a council officer to get a feel for what is and is not acceptable before submitting an application.
When determining an application, Council is required to take five broad criteria into account. A failure to do so may render the consent void.
If an application has not been determined
within 40 days it is deemed to have been refused. An appeal can be made
to the
Land
and Environment
Court
at this
time. If no appeal is lodged, the consent authority
can continue to assess the application and make its determination
after
the 40-day period has
expired.
If consent is refused, either because of the deeming
provision or by written notification, it is possible
to appeal the
decision. In
limited
circumstances,
an appeal on the facts – a merits appeal – can be made. The application
is reheard with all the previous and any new evidence submitted for consideration.
The Court then decides whether consent should be granted.
Procedural appeals, on the other hand, consider only
whether the consent authority has erred in the procedure
it has
followed in
reaching its
decision. The court
does not consider the merits of the final decision.
• Before finalising any negotiations to purchase or
lease commercial property, check the zoning restrictions
and
any conditions
that apply to its present
use. Obtain an s149 Certificate from the Council
and if necessary, make further enquiries
concerning any proposed changes to existing planning
instruments. Your solicitor can advise you on the
most appropriate searches.
• Before submitting a development application, make
sure your plans comply with what is permitted and/or
satisfy
the relevant
standards.
This will
save you both
time and money.
• Be aware of the State government controls that
affect how your property can be used. SEPP 22 and
SEPP 64
are particularly
relevant.
This article has been prepared to give a broad overview of the laws relating to planning and development in New South Wales. If you require legal advice on a particular aspect of the law, contact your own legal adviser.
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