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[2021] NSWLEC 1418
Land and Environment Court (NSW)
2021-06-25
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Judgment
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Environmental Planning & Assessment Act 1979 8.7 Appeal by applicant - applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes - (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. (3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court. ss 8.6, 8.7: Ins 2017 No 6, Sch 8.1 [2]. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority - (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards - (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. Note - The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4). (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (6) Definitions In this section - (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards. 4.16 Determination (cf previous s 80) (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (4) Total or partial consent A development consent may be granted - (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. Note - See also Division 4.4 for special procedures concerning concept development applications.
Environmental Planning and Assessment Regulation 2000 49 Persons who can make development applications (cf clause 46 of EP&A Regulation 1994) (1) A development application may be made - (a) by the owner of the land to which the development application relates, or 55 What is the procedure for amending a development application? (cf clause 48A of EP&A Regulation 1994) (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. (3) If the development application is for - (a) development for which concurrence is required, as referred to in section 4.13 of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. 77 Notice of development applications (1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must - (a) publish notice of the application on the consent authority's website, and (b) give notice of the application to - (i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and (ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development). (2) The notice must contain the following information - (a) a description (including the address) of the land on which the development is proposed to be carried out, (b) the name of the applicant and the consent authority, (c) a description of the proposed development, (d) whether or not the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development, (e) a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority's website for the period specified in Schedule 1 to the Act for that kind of development, (f) a statement that any person, during the submission period specified in Schedule 1 to the Act for that kind of development, may make submissions to the consent authority concerning the development application and that the submissions must specify the grounds of objection (if any), 113 Applications taken to be refused (cf clause 70B of EP&A Regulation 1994) (1) For the purposes of section 8.11(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being - (a) 40 days, except in the case of development referred to in paragraph (b) or (c), or Note : This clause does not apply in respect of a development application if section 8.7 of the Act does not apply to the application.
Biodiversity Conservation Act 2016 1.3 Purpose of Act The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and (c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and (d) to support biodiversity conservation in the context of a changing climate, and (e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and (f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and (g) to regulate human interactions with wildlife by applying a risk-based approach, and (h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and (i) to support and guide prioritised and strategic investment in biodiversity conservation, and (j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and (k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and (l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and (m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and (n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and (o) to make expert advice and knowledge available to assist the Minister in the administration of this Act.
Biodiversity Conservation Regulation 2017 7.2 Clearing of area of land that exceeds threshold (1) Clearing of native vegetation is declared by this clause to exceed the biodiversity offsets scheme threshold if the area proposed to be cleared is the area set out in Column 2 of the Table to this clause opposite the minimum lot size applicable to the land to be cleared in Column 1 of that Table. Note - Section 7.4 of the Act provides that any part of development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded for the purposes of determining whether proposed development exceeds the threshold. (2) The minimum lot size applicable to any land being cleared is as follows - (a) if an environmental planning instrument under the Environmental Planning and Assessment Act 1979 prescribes a standard minimum lot size in relation to the land on which the proposed development is to be carried out - that minimum lot size, (b) in any other case - the actual size of the allotment of land on which the proposed development is to be carried out. For the purposes of paragraph (a), the standard minimum lot size is the minimum lot size that applies to development generally on the land, and not any different minimum lot size that applies to particular development or in particular circumstances. (3) In the application of the Table to this clause - (a) if the proposed development does not comprise only the clearing of native vegetation - the area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots, and (b) if the proposed development comprises only the clearing of native vegetation - the area of clearing is the total area of proposed clearing - (i) over the lots in the same ownership (unless subparagraph (ii) applies), or (ii) over the lots that are worked or operated as a single property (whether or not they are in the same ownership), and (c) if the land on which the proposed development is to be carried out comprises different areas of land with different minimum lot sizes - the minimum lot size is the smaller or smallest of those minimum lot sizes, and (d) if the proposed development comprises or involves the clearing of more than one patch of native vegetation - the area of clearing is the total cumulative area cleared. (4) The Environment Agency Head is to publish a method (which may include computer programs) to be used for the purpose of calculating the total area of clearing for proposed development. Table 7.3 Clearing on land within Biodiversity Values Map exceeds threshold (1) In this clause - the Map means the Biodiversity Values Map published, from time to time, on an appropriate Government website under this clause. (2) The Environment Agency Head is to prepare and publish a Biodiversity Values Map. The Environment Agency Head may, from time to time, amend or replace the Map. (3) The Map may include the following land - (a) land that is the coastal wetlands and littoral rainforest area of the coastal zone referred to in the Coastal Management Act 2016, Note - See Biodiversity Conservation (Savings and Transitional) Regulation 2017 for the application of this provision before the commencement of that Act. (b) land identified as koala habitat in a plan of management made under State Environmental Planning Policy No 44 - Koala Habitat Protection, being land that in the opinion of the Environment Agency Head is core koala habitat, (c) land that is a declared Ramsar wetland within the meaning of the Environmental Protection and Biodiversity Conservation Act 1999 of the Commonwealth, (d) land that, in the opinion of the Environment Agency Head, contains any threatened species or threatened ecological communities that are identified in a list of potential serious and irreversible impacts on biodiversity values under section 6.5(2) of the Act, (e) land that is identified by the Environment Agency Head as biodiverse riparian land, (f) land containing high conservation value grasslands or other groundcover - (i) as determined under the "Interim Grasslands and Other Groundcover Assessment Method" published by the Minister for the Environment in the Gazette on 25 August 2017, or (ii) as determined by an independent field assessment undertaken before the commencement of the Act, (g) land that is identified by the Environment Agency Head as containing old-growth forests, on the basis of - (i) the mapping of old-growth forests for the purposes of the Comprehensive Regional Assessment under the National Forest Policy Statement (being the agreement between the Commonwealth, State and Territory governments made in 1992 and so described), but (ii) excluding any land containing native vegetation that does not meet the criteria for old-growth forests published jointly from time to time by the Minister for the Environment and the Minister for Primary Industries (as determined in accordance with the procedure so published), (h) land that is identified by the Environment Agency Head as containing rainforests, on the basis of - (i) the mapping of rainforests for the purposes of the Comprehensive Regional Assessment under the National Forest Policy Statement (being the agreement between the Commonwealth, State and Territory governments made in 1992 and so described), but (ii) excluding any land containing native vegetation that does not meet the criteria for rainforests published jointly from time to time by the Minister for the Environment and the Minister for Primary Industries (as determined in accordance with the procedure so published), (i) land that is a declared area of outstanding biodiversity value, (j) land that, in the opinion of the council of the local government area concerned, contains vegetation connectivity features or threatened species habitat and whose inclusion in the Map will, in the opinion of the Minister, conserve biodiversity at a bioregional or State scale, (k) any other land that, in the opinion of the Environment Agency Head, is of sufficient biodiversity value to be included in the Map. Note - Section 6.8(3) of the Act provides that the biodiversity assessment method is to exclude the assessment of the impacts of clearing of native vegetation and loss of habitat on category 1-exempt land (within the meaning of the Local Land Services Act 2013), other than impacts prescribed by the regulations under section 6.3 of the Act. (4) Despite anything to the contrary in this Part, proposed development (other than subdivision) does not exceed the biodiversity offsets scheme threshold merely because it is to be carried out on a lot included in the Map if the lot was the result of a subdivision carried out before the commencement of the Act and the lot is within land zoned R1 to R4, RU5, B1 to B8 or IN1 to IN3 under an environmental planning instrument. (5) If an area of land is included in the Map, proposed development to be carried out in that area of land does not exceed the biodiversity offsets scheme threshold if it is the subject of an application for planning approval when the area is so included or within 90 days after it is so included.
Hawkesbury Development Control Plan 2002 Part A Hawkesbury Development Control Plan 3.1 INTRODUCTION This chapter outlines notification requirements for the public exhibition of DAs. 3.2 NOTIFICATION OF DEVELOPMENT? This section identifies the types of the development that will be notified and the types of development that does not require notification. 3.2.1 What Development Will Be Notified? The following table identifies types of development that will be notified and the form of notification unless the General Manager, or delegated staff, consider that the circumstances of the application are such that notification is not necessary or a use that is not listed in the matrix is believed to require notification in the public interest. Extract: Agriculture: Letters to adjoining Owners/Occupiers, Site Plan, Notice in Local Newspapers
Hawkesbury Local Environmental Plan 2012 Zone E4 Environmental Living 1 Objectives of zone • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To restrict development on land that is inappropriate for development because of its physical characteristics or bushfire risk. • To ensure that land uses are compatible with existing infrastructure, services and facilities and with the environmental capabilities of the land. • To encourage existing sustainable agricultural activities. • To ensure that development does not create or contribute to rural land use conflicts. • To promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation. • To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways. 2 Permitted without consent Bed and breakfast accommodation; Environmental protection works; Extensive agriculture; Home occupations 3 Permitted with consent Animal boarding or training establishments; Boarding houses; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Charter and tourism boating facilities; Child care centres; Community facilities; Dual occupancies (attached); Dwelling houses; Educational establishments; Entertainment facilities; Environmental facilities; Farm buildings; Flood mitigation works; Food and drink premises; Forestry; Health consulting rooms; Helipads; Heliports; Home-based child care; Home industries; Hospitals; Intensive livestock agriculture; Intensive plant agriculture; Jetties; Landscaping material supplies; Moorings; Passenger transport facilities; Places of public worship; Plant nurseries; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Roads; Roadside stalls; Rural supplies; Rural workers' dwellings; Sawmill or log processing works; Stock and sale yards; Tourist and visitor accommodation; Transport depots; Truck depots; Veterinary hospitals; Water recreation structures; Water storage facilities 4 Prohibited Industries; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3 Zone SP2 Infrastructure 1 Objectives of zone • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. 2 Permitted without consent Environmental protection works; Home occupations 3 Permitted with consent Roads; The purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose 4 Prohibited … Definition animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital. 5.1 Relevant acquisition authority (1) The objective of this clause is to identify, for the purposes of section 27 of the Act, the authority of the State that will be the relevant authority to acquire land reserved for certain public purposes if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 (the owner-initiated acquisition provisions). Note - If the landholder will suffer hardship if there is any delay in the land being acquired by the relevant authority, section 23 of the Land Acquisition (Just Terms Compensation) Act 1991requires the Authority to acquire the Land. (2) The authority of the State that will be the relevant authority to acquire land, if the land is required to be acquired under the owner-initiated acquisition provisions, is the authority of the State specified below in relation to the land shown on the Land Reservation Acquisition Map (or, if an authority of the State is not specified in relation to land required to be so acquired, the authority designated or determined under those provisions). 5.1A Development on land intended to be acquired for public purposes (1) The objective of this clause is to limit development on certain land intended to be acquired for a public purpose. (2) This clause applies to land shown on the Land Reservation Acquisition Map and specified in Column 1 of the Table to this clause and that has not been acquired by the relevant authority of the State specified for the land in clause 5.1. (3) Development consent must not be granted to any development on land to which this clause applies other than development for a purpose specified opposite that land in Column 2 of that Table. 6.1 Acid sulfate soils (1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. (2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. (3) Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. (4) Despite subclause (2), development consent is not required under this clause for the carrying out of works if: (a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and (b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works. … (6) Despite subclause (2), development consent is not required under this clause to carry out any works if: (a) the works involve the disturbance of less than 1 tonne of soil, such as occurs in carrying out agriculture, the construction or maintenance of drains, extractive industries, dredging, the construction of artificial water bodies (including canals, dams and detention basins), foundations or flood mitigation works, or (b) the works are not likely to lower the watertable. 6.2 Earthworks (1) The objectives of this clause are as follows: (a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, (b) to allow earthworks of a minor nature without requiring separate development consent. (2) Development consent is required for earthworks unless: (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to other development for which development consent has been given. (3) Before granting development consent for earthworks, the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. Note - The National Parks and Wildlife Act 1974, particularly section 86, deals with disturbing or excavating land and Aboriginal objects. 6.3 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual(ISBN 0 7347 5476 0), published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause: flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event. 6.4 Terrestrial biodiversity (1) The objective of this clause is to maintain terrestrial biodiversity by: (a) protecting native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the conservation and recovery of native fauna and flora and their habitats. (2) This clause applies to land identified as "Significant vegetation" and "Connectivity between significant vegetation" on the Terrestrial Biodiversity Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider: (a) whether the development: (i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land. (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
Land and Environment Court Act 1979 17 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following: … d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979, 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act: (a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and (b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and (c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body. Section 93 of that Act applies to a development consent granted as a result of the appeal. (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.
State Environmental Planning Policy (Coastal Management) 2018 3 Aim of Policy The aim of this Policy is to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of theCoastal Management Act 2016, including the management objectives for each coastal management area, by - (a) managing development in the coastal zone and protecting the environmental assets of the coast, and (b) establishing a framework for land use planning to guide decision-making in the coastal zone, and (c) mapping the 4 coastal management areas that comprise the NSW coastal zone for the purpose of the definitions in the Coastal Management Act 2016. 5 Land to which Policy applies This Policy applies to land within the coastal zone. 6 Identification of coastal management areas Note - Section 5 of the Coastal Management Act 2016 provides that the "coastal zone" means the area of land comprised of the following coastal management areas-- (a) the coastal wetlands and littoral rainforests area, (b) the coastal vulnerability area, (c) the coastal environment area, (d) the coastal use area. (1) This clause identifies land for the purposes of the Coastal Management Act 2016 and this Policy. (2) The coastal wetlands and littoral rainforests area is the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map. Note - The coastal wetlands and littoral rainforests area is made up of land identified as "coastal wetlands" or as "littoral rainforests" on the Coastal Wetlands and Littoral Rainforests Area Map. The land so identified includes land identified as "proximity area for coastal wetlands" and "proximity area for littoral rainforest". (3) The coastal vulnerability area is the land identified as such by the Coastal Vulnerability Area Map. Note - At the commencement of this Policy, no Coastal Vulnerability Area Map was adopted and therefore no coastal vulnerability area has been identified. (4) The coastal environment area is the land identified as such by the Coastal Environment Area Map. (5) The coastal use area is the land identified as such by the Coastal Use Area Map. 13 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following - (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. (3) This clause does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.
State Environmental Planning Policy (Infrastructure) 2007 100 Development on proposed classified road (1) Consent for development for any of the following purposes on land reserved for the purposes of a classified road (but before the land is declared to be a classified road) may be granted only with the concurrence of the chief executive officer of RMS-- (a) subdivision that results in the creation of an additional lot with dwelling entitlements, (b) development with a capital investment value greater than $185,000, (c) development for the purpose of dwellings that are, or any other building that is, to be held under strata title. (2) Before determining a development application (or an application for modification of a consent) for development to which this clause applies, the consent authority must-- (a) give written notice of the application to the chief executive officer of RMS within 7 days after the application is made, and (b) take into consideration any response to the notice that is received within 21 days after the notice is given. (3) In deciding whether to grant concurrence to proposed development under this clause, the chief executive officer of RMS must take the following matters into consideration-- (a) the need to carry out development for the purposes of a classified road or a proposed classified road, (b) the imminence of acquisition of the land by RMS, (c) the likely additional cost to RMS resulting from the carrying out of the proposed development. (4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made. (5) The consent authority may grant consent to development to which this clause applies without the concurrence of the chief executive officer of RMS if-- (a) the consent authority has given the chief executive officer notice of the development application, and (b) 21 days have passed since giving the notice and the chief executive officer has not granted or refused to grant the concurrence.
State Environmental Planning Policy (Koala Habitat Protection) 2021 Part 4 Savings and transitional provisions 18 Existing development applications A development application made in relation to land, but not finally determined before this Policy applied to the land, must be determined as if this Policy had not commenced in its application to the land.
State Environmental Planning Policy (Koala Habitat Protection) 2020 4 Definitions In this Policy - core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population. guidelines means the guidelines, as in force from time to time, made for the purposes of this Policy by the Planning Secretary. Planning for Bush Fire Protection means the document referred to in clause 272 of the Environmental Planning and Assessment Regulation 2000. potential koala habitat means areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. 5 Land to which Policy applies (1) This Policy applies to each local government area listed in Schedule 1 of State Environmental Planning Policy (Koala Habitat Protection) 2021 … State Environmental Planning Policy (Koala Habitat Protection) 2020 [NSW] Schedule 1 Local government areas: Ku-ring-gai; Weddin; Kyogle; Wentworth; City of Lake Macquarie; Wingecarribee; Leeton; Wollondilly; City of Lismore; City of Wollongong; City of Lithgow; Yass Valley; City of Liverpool. 9 Step 2 - Is the land core koala habitat? (1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself as to whether or not the land is a core koala habitat. (2) The council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management. (3) If the council is satisfied - (a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a core koala habitat, it must comply with clause 10. Part 3 Plans of management 12 Preparation of plan of management (1) A plan of management may be prepared for - (a) the whole of a local government area listed in Schedule 1, or (b) a part of such a local government area, including an area of land that is the subject of a development application. (2) Anyone, including a council, may prepare a plan of management. (3) A plan of management is to be prepared in accordance with the guidelines.
State Environmental Planning Policy No 55 - Remediation of Land 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless-- (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2 - 1997) 6 Specific planning policies and recommended strategies The specific planning policies and recommended strategies for this plan are as follows: (1) Total catchment management Policy: Total catchment management is to be integrated with environmental planning for the catchment. Strategies: (a) Refer the application or other proposal for comment to the councils of each adjacent or downstream local government area which is likely to suffer a significant adverse environmental effect from the proposal. (b) Consider the impact of the development concerned on the catchment. (c) Consider the cumulative environmental impact of development proposals on the catchment. (2) Environmentally sensitive areas Policy: The environmental quality of environmentally sensitive areas must be protected and enhanced through careful control of future land use changes and through management and (where necessary) remediation of existing uses. Note - Environmentally sensitive areas in the Hawkesbury-Nepean catchment are: the river, riparian land, escarpments and other scenic areas, conservation area subcatchments, national parks and nature reserves, wetlands, other significant floral and faunal habitats and corridors, and known and potential acid sulphate soils. Strategies: (a) Rehabilitate parts of the riverine corridor from which sand, gravel or soil are extracted so that attached aquatic plant beds are replaced and water quality and faunal habitats improved. (b) Minimise adverse impacts on water quality, aquatic habitats, riverine vegetation and bank stability. (c) Minimise direct and indirect adverse impacts on land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916 and conservation area sub-catchments in order to protect water quality and biodiversity. (d) Protect wetlands (including upland wetlands) from future development and from the impacts of land use within their catchments. (e) Consider the need to include buffer zones (such as adequate fire radiation zones) for proposals on land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974 or theForestry Act 1916. (f) Consider the views of the Director-General of National Parks and Wildlife about proposals for land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974. (g) Consideration should be given to the impact of the development concerned on the water table and the formation of acid sulphate soils. (h) New development in conservation area sub-catchments should be located in areas that are already cleared. (3) Water quality Policy: Future development must not prejudice the achievement of the goals of use of the river for primary contact recreation (being recreational activities involving direct water contact, such as swimming) and aquatic ecosystem protection in the river system. If the quality of the receiving waters does not currently allow these uses, the current water quality must be maintained, or improved, so as not to jeopardise the achievement of the goals in the future. When water quality goals are set by the Government these are to be the goals to be achieved under this policy. Note - Aquatic ecosystems and primary contact recreation have the same meanings as in the document entitled Australian Water Quality Guidelines for Fresh and Marine Waters, published in 1992 by the Australian and New Zealand Environment and Conservation Council. Strategies: (a) Quantify, and assess the likely impact of, any predicted increase in pollutant loads on receiving waters. (b) Consider the need to ensure that water quality goals for primary contact recreation and aquatic ecosystem protection are achieved and monitored. (c) Approve development involving primary contact recreation or the withdrawal of water from the river for human contact (not involving water treatment), such as showers, only in locations where water quality is suitable (regardless of water temperature). (d) Do not carry out development involving on-site disposal of sewage effluent if it will adversely affect the water quality of the river or groundwater. Have due regard to the nature and size of the site. (e) Develop in accordance with the land capability of the site and do not cause land degradation. (f) Consider the need for an Erosion and Sediment Control Plan (to be in place at the commencement of development) where the development concerned involves the disturbance of soil. (g) Minimise or eliminate point source and diffuse source pollution by the use of best management practices. (h) Site and orientate development appropriately to ensure bank stability. Plant appropriate native vegetation along banks of the river and tributaries of the river, but not so as to prevent or inhibit the growth of aquatic plants in the river, and consider the need for a buffer of native vegetation. (i) Consider the impact of the removal of water from the river or from groundwater sources associated with the development concerned. (j) Protect the habitat of native aquatic plants. (4) Water quantity Policy: Aquatic ecosystems must not be adversely affected by development which changes the flow characteristics of surface or groundwater in the catchment. Strategies: (a) Future development must be consistent with the interim or final river flow objectives that are set for the time being by the Government. (b) Ensure the amount of stormwater run-off from a site and the rate at which it leaves the site does not significantly increase as a result of development. Encourage on-site stormwater retention, infiltration and (if appropriate) reuse. (c) Consider the need for restricting or controlling development requiring the withdrawal or impoundment of water because of the effect on the total water budget of the river. (d) Consider the impact of development on the level and quality of the water table. (5) Cultural heritage Policy: The importance of the river in contributing to the significance of items and places of cultural heritage significance should be recognised, and these items and places should be protected and sensitively managed and, if appropriate, enhanced. Strategies: (a) Encourage development which facilitates the conservation of heritage items if it does not detract from the significance of the items. (b) Protect Aboriginal sites and places of significance. (c) Consider an Aboriginal site survey where predictive models or current knowledge indicate the potential for Aboriginal sites and the development concerned would involve significant site disturbance. (d) Consider the extent to which heritage items (either identified in other environmental planning instruments affecting the subject land or listed in Schedule 2) derive their heritage significance from the river. (6) Flora and fauna Policy: Manage flora and fauna communities so that the diversity of species and genetics within the catchment is conserved and enhanced. Strategies, generally: (a) Conserve and, where appropriate, enhance flora and fauna communities, particularly threatened species, populations and ecological communities, aquatic habitats, wetland flora, rare flora and fauna, riverine flora, flora with heritage value, habitats for indigenous and migratory species of fauna, and existing or potential fauna corridors. (b) Locate structures where possible in areas which are already cleared or disturbed instead of clearing or disturbing further land. (c) Minimise adverse environmental impacts, protect existing habitat and, where appropriate, restore habitat values by the use of management practices. (d) Consider the impact on ecological processes, such as waste assimilation and nutrient cycling. (e) Consider the range of flora and fauna inhabiting the site of the development concerned and the surrounding land, including threatened species and migratory species, and the impact of the proposal on the survival of threatened species, populations and ecological communities, both in the short and longer terms. (f) Consider the need to provide and manage buffers, adequate fire radiation zones and building setbacks from significant flora and fauna habitat areas. (g) Consider the need to control access to flora and fauna habitat areas. (h) Consider the need to maintain corridors for fish passage, and protect spawning grounds and gravel beds. (7) Riverine scenic quality Policy: The scenic quality of the riverine corridor must be protected. Strategies: (a) Maintain areas of extensive, prominent or significant vegetation to protect the character of the river. (b) Ensure proposed development is consistent with the landscape character as described in the Scenic Quality Study. (c) Consider the siting, setback, orientation, size, bulk and scale of and the use of unobtrusive, non-reflective material on any proposed building or work, the need to retain existing vegetation, especially along river banks, slopes visible from the river and its banks and along the skyline, and the need to carry out new planting of trees, and shrubs, particularly locally indigenous plants. (d) Consider the need for a buffer between new development and scenic areas of the riverine corridor shown on the map as being of significance beyond the region (which are also scenic areas of significance for the region) or so shown as being of regional significance only. (e) Consider the need for controls or conditions to protect those scenic areas. (f) Consider opportunities to improve riverine scenic quality.
Orders
Acting Commissioner of the Court Annexure A (267112, pdf) Plans (2630885, pdf)
Endnotes
Kara-Ali
Hawkesbury City Council