Australia: Five frustrating things about the NSW planning system and how to overcome them

Everyone knows the NSW planning system is in dire need of serious reform. How and when that will happen is anyone's guess, so we need to work with the system we've got.

Unknown or unexpected technical issues under the current system can cause delays and significant cost blowouts. For small to medium developers, this can make it difficult to get a development across the line without spending a small fortune.

Below are some common issues that arise and some tips on how to avoid them.

1. Planning controls

Determining whether or not you need development consent or if your proposed development is prohibited is not as easy as you'd expect. Often, you will need to trawl through a local environmental plan (LEP) and several State Environmental Planning Policies (SEPPs) as well as zoning, heritage, lot size, height of building and floor space ratio maps before you can ascertain whether a development is exempt, complying, needs consent or is prohibited.

Development can be exempt or permissible, despite it appearing in the zoning provisions as a prohibited development. The most obvious example of this is the heritage "conservation incentive" clause in standard LEPs, which permits development of a heritage item for any purpose, provided that the conservation of the item will be facilitated by the granting of the consent.

Tip: Know what you want to do and get advice from a good planning consultant or a good planning lawyer. It will be worth it!

2. Restrictions on development

Determining whether your proposed development is permissible with consent is often not enough to proceed with a purchase and/or the preparation of a development application (DA). In some circumstances consent will never be granted and it would be futile to even make an application.

For example, if the land is in a floodway or subject to coastal hazards, the council may have a policy restricting the granting of consent to development on that land.

Past events might also prevent you from getting any further approvals. If a complying development certificate has been issued for a secondary dwelling under SEPP (Affordable Rental Housing) 2009, development consent cannot be granted for subdivision of that land in the future. Additionally, if a staged development consent applies to a site, any further development application for the site cannot be granted if it is inconsistent with that consent.

Tip: No-one wants to spend time and expense on a DA that will be refused. Do your due diligence before purchasing property with a development in mind. This includes getting a section 149 certificate from council and, if necessary, asking further questions about the likely limitations of the site.

3. Consent authorities

There are a number of consent authorities under the NSW planning system. The consent authority relevant to your application will depend on a range of factors, including the type of development, the capital investment value of the development, the number of objectors and the whim of politicians.

Councillors will usually have the ability to "call up" any application for consideration at a council meeting. Applications that are determined by councillors or by the Joint Regional Planning Panel usually take longer. These applications will be scrutinised to ensure that every issue is addressed properly and further information is often sought.

Tip: Account for delays in your project timeframes. Make sure your DA addresses all relevant issues, even if they are insignificant. This will minimise delays caused through requests for information and enable council officers to easily prepare a detailed assessment report.

4. Objectors

Objectors can, and will, raise any issue in an effort to stop development from progressing. We've seen everything, from concerns about the "toxicity" of treated timber fences, to the potential for a residential development near wetlands to "attract" more disease carrying mosquitoes to the area.

Many of these objections are not planning issues that can be considered by the consent authority. Some councillors will, however, be persuaded by well-presented objections, even if they are totally irrelevant.

Tip: Before lodging a DA, take the time to consult with neighbours to address any concerns. Be open to amending the application or offering mitigation measures. It's difficult to satisfy everyone, but you will at least be showing that you have made some concessions.

5. Merit appeals and costs

If your DA is refused, you will be entitled to appeal that decision in the Land and Environment Court. Although such appeals are intended to be quicker, cheaper and less formal than other types of court proceedings, that will not always be the case. Merit appeals in the Land and Environment Court can be extremely expensive and take longer than anticipated. In many cases, these costs and time delays will make projects unviable.

Tip: Don't risk a refusal by lodging a poorly prepared application or failing to respond to reasonable requests for information. Spending time and money on your application might prevent you from having to spend even more time and money on an appeal.

The problems with the current NSW planning system are not going away any time soon. The best solution is to be aware of the issues and do what you can to minimise costs and delay by preparing a detailed and complete DA, and getting good advice before you commit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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