THE DA, THE LEP, THE EIS & OTHER PUZZLES:
HOW THE PLANNING SYSTEM WORKS
It’s strange that our environment and communities can become so compromised when we have such an elaborate planning system. Here’s a very brief and basic look at how the planning system is supposed to work.
Planning instruments Part 3 of the Environmental Planning and Assessment Act establishes a hierarchy of plans which set the parameters for councils’ planning decisions. They include State Environmental Planning Policies, Regional Environmental Plans, Local Environmental Plans and Development Control Plans, known as SEPPs, REPs, LEPs and DCPs. The Minister for Infrastructure, Planning and Natural Resources (formerly PlanningNSW, now including Dept Land and Water Conservation) signs off on SEPPS, REPs and LEPs. SEPPs can apply to issues across the state, or be site-specific. REPs apply to a region. Here we have the North Coast REP. LEPs apply to a council area. Councils write their own LEP, but it has to be consistent with all SEPPs and the REP. A DCP provides the finer detail on an LEP about things like car-parking or building design. Councils can change DCPs without asking the Minister of IPNR. Check out the SEPPs and North Coast REP on the web:
What does an LEP do? It sets out what development can happen where, by zoning land for identified uses. The usual zones are for residential, rural residential, industrial, commercial, special uses (railways, schools), open space, agricultural protection, environmental protection and general rural. Each LEP is different. Each zone specifies land uses that need consent, those that don’t need consent, and those which are prohibited. In Copmanhurst LEP’s general rural zone, motor showrooms are prohibited, agriculture doesn’t need consent, and quarries need consent. LEPs also set rules for subdivision, heritage items, acid sulphate soils, contaminated land – all sorts of things. Councils can amend their LEPs. There’s a process. They have to put a draft on public exhibition, and the community can write submissions. The council also has to consult with state government departments, who might have problems with some aspect of the LEP. Notices about public exhibition of LEPs are in the back of the local newspaper, usually under council notices. They are often obscure and in small print. A proposal to rezone habitat for urban use might be called ‘Amendment no 32 to Wee Waa LEP.’ The Minister for Planning has to sign off on the amended LEP. Check out your council’s LEP.
What does consent mean? Now we get to Part 4 of the Act. It’s about development which needs consent according to the LEP. This is where development applications (DAs) come into the picture. If a developer wants to build a motel, he or she will look in the LEP. If the land is in a zone where motels are permitted with consent, they’d lodge a DA. (If motels are prohibited they might lobby the council to rezone the land. If the council supported his proposal, they’d try to get an LEP amendment through the state government). The council’s environmental planner will look at the DA, checking for consistency with the LEP and the DCP. The criteria for determining a DA is very broad. It’s at section 79C of the Act. Have a look. The planner writes a report for the council, recommending approval, refusal, or approval with conditions. These conditions will include Section 94 developers’ contributions which help pay for the extra demand on services to be created by the development. Consents can be modified if the changes are not ‘substantial’. They lapse after 5 years if not commenced. Councils are normally the consent authority (decision-maker) for Part 4. But the Minister for Planning can call in any development application which is considered to be of state or regional significance. Some councils have planning and development committees which consider planning DAs prior to the full council meeting. Councils when determining DAs don’t have to follow the planner’s recommendation. Many don’t.
The EIS and SIS Designated developments are developments which need consent and which have to be accompanied by an Environmental Impact Statement. The list of designated developments is at Schedule 3 of the EP& A Regulations. Examples are quarries, feedlots, power stations, and marinas. Most of the items are qualified by scale and location. Designated development has two-fold implications. Firstly, the EIS has to go through a public consultation process and submissions have to be formally considered. Secondly, objectors to a designated development which has been approved can appeal against the decision in the Land and Environment Court. An EIS has legal status in the planning system. A review of environmental factors and a statement of environmental effects have no legal status. If development is likely to significantly affect a threatened species, populations or ecological communities (as indicated by an eight-part test carried out by the proponent) concurrence must be sought from the National Parks and Wildlife Director General and a Species Impact Statement is needed.
Part 5 of the Act deals with activities which don’t need development consent. This can be a private development where some approval is required other than development consent – say a license from National Parks and Wildlife. Part 5 activities are more often public developments. Most of the Regional Water Supply was part 5 because the EP&A Act Model Provisions automatically make public utility undertakings Part 5 – but not all aspects. The Model Provisions exclude formation of road access from Part 5. That’s why North Coast Water lodged a DA for the Shannon Creek Dam access road with Pristine Waters Council. Part 5 activities need an EIS if the proponent considers they are likely to significantly affect the environment. The determining authority is the body who gives the licence or approval. If a public body is carrying out the activity and also issuing the license, they will be both the determining authority and the proponent – but the Minister for Planning will make the final decision in such cases where an EIS has been prepared.
When do we have a say? The E P & A Act provides for limited public participation. EISs must be publicly exhibited. A property over which there’s a DA must have a notice on it. Some LEPs have a category of ‘advertised development’ which must be publicly notified. Councils have to keep a register of DAs for the public to see. The REP and LEP process have a compulsory public exhibition period. SEPPs don’t. If a DA is not designated development, is not called in, and a council grants consent, the merits of the decision cannot be appealed in Court.
With all these planning structures in place, you’d expect our environment to be in great shape and our settlements sustainable. While the framework may be mostly logical, it’s only as good as the people who help to make the decisions about what actually goes into a planning instrument, what gets approved in a council chamber, and what happens on the ground. What can you do to make the system work better? Check out the planning instruments. Ask questions. Write submissions. Demand accountability. Run for council!
Where to find more information
EP & A Act:
REP and SEPPs (drop down menu,'The Planning System')