Australia: NSW Planning, Environment & Government Update

Last Updated: 1 March 2007


  • Important Amendments To Planning Regulations

  • Some Welcome Relief For NSW Landowners With Existing Use Rights

  • Important Amendments To Planning Regulations

  • Land And Environment Court Update

The approach to the classification of 'designated development' has been largely restored by an amendment this week to the Regulation which overturns a recent controversial decision of the Court of Appeal.

Court of Appeal Decision

In a recent case delivered in November 2006 (Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd), the Court of Appeal held that a development involving the construction of 36 buildings, containing 72 tourist and/or residential dwellings and a community title subdivision was 'designated development' because a single aspect of that development involved the on-site treatment of sewerage. This, on its own, comprises designated development.

Where a development is classified as 'designated development', it must be accompanied by an Environmental Impact Statement (EIS) which must be publicly notified with the development application. Objectors to the development are also granted the right of appealing the approval of the development on a merits basis. That right of appeal does not apply in relation to standard development applications.

This case significantly altered the previous approach of the Court and meant that, even if an aspect of a development was designated, then the whole of the development was to be classified as 'designated development'. The judgment therefore significantly broadened both the types and number of developments that were to be characterised as 'designated development' and therefore require an EIS.

Amendment to the Environmental Planning and Assessment Regulation 2007 (the Regulation)

On Friday 2 March 2006, an amendment was made to the Regulation so as to overcome the decision of the Court of Appeal and to largely restore the previous approach to the classification of 'designated development'.

The Regulation:

  • removes storage facilities for sewage or effluent and some small-scale on-site sewage systems or works (including those that reuse sewage or effluent) from the categories of 'designated development'; and

  • importantly, makes it clear that (apart from some sewerage systems or works) ancillary development (which would otherwise be considered to be designated development) is not 'designated development' if it is ancillary to other development and is not proposed to be carried out independently of that development.

Accordingly, apart from a minor amendment to the 'sewerage systems or works' category, the previous approach to 'designated development' has been restored. Therefore, if a single aspect of a development comprises 'designated development' but is ancillary to the dominant character of the overall development, the development will not regarded as constituting 'designated development'.

This Regulation will be met with open arms by many developers who were struggling to come to terms with the fact that an EIS needed to be prepared to address very minor aspects of their developments and that objectors would have merit appeal rights against their developments.

Some Welcome Relief For NSW Landowners With Existing Use Rights

In March 2006 the existing use rights provisions of the Environmental Planning and Assessment Regulation 2000 were amended to remove the long-standing ability to change an existing use to another prohibited use (as discussed in our April 2006 planning, environment and government update). Existing uses could only be maintained or converted to permissible uses (with development consent).

Recent amendments made to the Environmental Planning and Assessment Regulations 2000 renew some of the value of existing use rights.

Under the amended provisions:

  • an existing commercial use may be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act); and

  • an existing light industrial use may be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

'Commercial use' includes office, business or retail premises.

However, an existing use can only be changed under these provisions where the change:

  1. involves only alterations or additions that are minor in nature; and

  2. does not involve an increase of more than 10% in the floor space of the premises associated with the existing use; and

  3. does not involve the rebuilding of the premises associated with the existing use; and

  4. does not involve a significant intensification of that existing use; and

  5. relates only to premises that have a floor space of less than 1,000 square metres.

The changes were introduced to respond to the situation that had arisen where many councils were interpreting the existing use regulations in a very narrow way, for example, not allowing a shop to be converted to another shop. That approach was inconsistent with a long line of case law, but the recent changes to the Regulations now make it abundantly clear that some flexibility is allowed.

Land And Environment Court Update

New Planning Principle: Alterations And Additions Involving Demolition

Commissioner Watts of the Land and Environment Court has announced a new planning principle essentially defining 'alterations and additions' to existing buildings.

A numerical figure has been placed on the extent to which the demolition of an existing building will comprise a development application relating to a new building as opposed to the alteration and addition of an existing building. The new principle specifically provides that:

"a development application to alter and add to a building will be taken to be that relating to a new building where more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in plan and the area of the lowest habitable floor."

It is important to note that this principle does not apply to modification applications and so this principle does not apply to the test of whether an application is 'substantially the same'. The principle only applies to development applications for alterations and additions.

Nevertheless, this case is interesting as it inserts a numerical figure into the assessment of what comprises alterations and additions where previously, a qualitative and quantitative assessment was made based on the factual circumstances of the case. In doing so, the principle seems to create a rule more closely related to a 'standard' or 'control', or indeed a definition of 'alterations and additions' rather than a planning principle directed to the merits of an application. As such, it seems likely that the legality of the decision will be challenged in due course. If not, it will have significant implications where planning controls give concessions for development comprising alterations and additions in comparison to the treatment of applications for demolition and the construction of new buildings.


Anthony Whealy

t (02) 9931 4867


Isabella Ferguson

t (02) 9931 4929


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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