Part 1
Preliminary
Part 1 Preliminary
Part 1 Preliminary
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New South Wales regulation
What this instrument does (mechanically)
It is the local environmental plan (LEP) that sets land use zones, what uses are allowed in each zone, and what development needs Council approval across the Lake Macquarie local government area (clause 2; clause 15 table). The Council is the consent authority (clause 4).
The plan divides development into: exempt development (no development consent required but subject to conditions; Schedule 1; clause 8), complying development (meets pre-approved standards and DCP rules; clause 9), development that requires development consent, and prohibited development (clause 15 table).
It contains city‑wide controls about how consent decisions must be made: decision‑makers must have regard to the Lifestyle 2020 Strategy (clause 16), ensure essential infrastructure is available or provided (clause 17), and consider environmental and technical matters such as erosion control (clause 31), flood risk (clause 32), bushfire (clause 33), trees and native vegetation (clause 34), acid sulfate soils (clause 35), pollution (clause 30) and heritage (Part 6, clauses 43–54, 47–53).
The plan includes an exceptions mechanism that allows consent authorities to permit departures from certain development standards when justified (clause 21 and mirrored in site-specific Parts 76, 98, 121, 145, etc.). It preserves some mandatory exclusions (for example standards linked to BASIX or complying development cannot be overridden) (clause 21(8)).
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Direct links to the current provisions in Lake Macquarie Local Environmental Plan 2004.
Part 1 Preliminary
2 Land to which plan applies
(1) This plan applies to all land within the local government area of Lake Macquarie City, except as provided by subclause (2).
(2) This plan does not apply to land to which Lake Macquarie Local Environmental Plan 2000—North Wallarah Peninsula applies or to any land shown as “Deferred” on the map.
(3) (Repealed)
cl 2: Am 2008 (406), Sch 2.2; 2010 (620), Sch 1.2; 2014 (220), Sch 1 [1].
3 Objective of plan
The objective of this plan is to achieve development of land to which this plan applies that is in accordance with the principles of ecologically sustainable development by—
(a) promoting balanced development of that land, and
(b) implementing the Lifestyle 2020 Strategy adopted by the Council on 27 March 2000.
4 Consent authority
The Council is the consent authority for the purposes of this plan, subject to the Act.
5 Relationship to other environmental planning instruments
(1) All local environmental plans (including Lake Macquarie Local Environmental Plan 1984) that applied to land to which this plan applies immediately before the appointed day are repealed.
(2) This plan amends State Environmental Planning Policy No 4—Development Without Consent and Miscellaneous Exempt and Complying Development by inserting the following words in alphabetical order in Schedule 2 (Land excepted from clauses 6–10)—
Lake Macquarie City local government area
(3) The Hunter Regional Environmental Plan 1989 (Heritage) does not apply to land to which this plan applies.
6 Notes
Notes in this plan are provided for guidance and do not form part of this plan.
cl 6: Subst 2010 (218), Sch 1 [1].
7 Definitions
(1) Words defined in the Dictionary at the end of this plan have the meanings set out in the Dictionary.
(1A) Words and expressions used in this plan in relation to development on land in Zone B4 Mixed Use Zone have the same meaning as they have in the standard instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011).
(2) In this plan, a reference to—
(a) a map, is a reference to a map held at the office of the Council, and
(b) land within a zone, is a reference to land shown on the map as being within that zone.
cl 7: Am 2010 (288), Sch 1 [1]; 2011 (103), Sch 1.3.
8 Exempt development
Development meeting the criteria for exempt development in Schedule 1, being development of minimal environmental impact, is exempt development for the purposes of the Act.
9 Complying development
Local development that complies with the standards and any other requirements specified for the development in Lake Macquarie Development Control Plan No 2—Complying Development, as approved by the Council on 22 March 2004, is complying development for the purposes of the Act.
Note—
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 specifies complying development and the complying development conditions for that development under that Policy. That Policy has State-wide application.
cl 9: Am 2007 (53), Sch 1 [1]; 2010 (218), Sch 1 [2].
10 Development by public authorities
Despite other provisions of this plan, the following are allowed on land to which this plan applies without consent—
(a) the use of existing buildings of the Crown by the Crown, and
(b) activities specified in Schedule 10.
11 Determination of pending development applications
(1) Any development application lodged but not finally determined prior to the commencement of this plan is to be determined as if this plan had been exhibited under the Act but had not been made.
(2) Development control plans as in force immediately before the commencement of this plan are to be taken into consideration by the consent authority in determining any such development application.
(3) A development application lodged with the Council, but not finally determined, before the commencement of Lake Macquarie Local Environmental Plan 2004 (Amendment No 28) is to be determined as if that plan had been exhibited under the Act but had not been made.
(4) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Exceptions to Development Standards) 2023 must be determined as if that policy had not commenced.
(5) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Flood Planning) 2023 must be determined as if that policy had not commenced.
cl 11: Am 2010 (218), Sch 1 [3]; 2023 (524), Sch 1.1[2]; 2023 (609), Sch 2.10[1].
Part 2 Lifestyle 2020 Strategy—vision, values and aims
12 Vision
The vision for land to which this plan applies is described in the Lifestyle 2020 Strategy, which is available from the office of the Council.
13 Values
The 4 core values of that strategy are sustainability, equity, efficiency and liveability.
14 Aims
The aims of the Lifestyle 2020 Strategy are to—
(a) provide the community with realistic expectations about the future development patterns for land in Lake Macquarie City, while retaining flexibility for land use decision making in the longer term, and
(b) reinforce and strengthen centres so that a wide range of commercial and community services may be provided in a timely and accessible manner, and
(c) provide local employment opportunities for residents and promote economic development consistent with the City’s natural, locational and community resources, and
(d) guide the development of urban communities that are compact, distinct and diverse and include a range of housing types and activities, and
(e) achieve a strong sense of positive community identity, through the development of local communities that are safe and liveable and offer a diversity of uses, economic opportunities and ready access to services, and
(f) develop an attractive urban setting for the City which reflects its physical and natural environment, and visual character, and
(g) manage the City’s natural environment so that its ecological functions and biological diversity are conserved and enhanced, and contribute to the City’s overall well being, and
(h) manage the City’s heritage and economic resources in a way that protects the value of these resources and enhances the City’s character, and
(i) integrate land use with the efficient provision of public and private movement systems, and
(j) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts.
cl 14: Am 2020 (724), Sch 1.7.
Part 3 General controls for land within zones
15 General controls for land within zones
Except as provided otherwise by this plan, the following Table shows for land within each zone—
(a) the development that may be carried out in the zone without development consent under the heading “Without development consent”, and
(b) the development that may be carried out in the zone only with development consent under the heading “Only with development consent”, and
(c) the development that is prohibited in the zone under the heading “Prohibited”.
Land use table
Zone 1 (1) Rural (Production) Zone
Zone 1 (2) Rural (Living) Zone
Zone 2 (1) Residential Zone
Zone 2 (2) Residential (Urban Living) Zone
Zone 3 (1) Urban Centre (Core) Zone
Zone 3 (2) Urban Centre (Support) Zone
Zone B4 Mixed Use Zone
Zone 4 (1) Industrial (Core) Zone
Zone 4 (2) Industrial (General) Zone
Zone 4 (3) Industrial (Urban Services) Zone
Zone 5 Infrastructure Zone
Zone 6 (1) Open Space Zone
Zone 6 (2) Tourism and Recreation Zone
Zone 7 (1) Conservation (Primary) Zone
Zone 7 (2) Conservation (Secondary) Zone
Zone 7 (3) Environmental (General) Zone
Zone 7 (4) Environmental (Coastline) Zone
Zone 7 (5) Environmental (Living) Zone
Zone 8 National Park Zone
Zone 9 Natural Resources Zone
Zone 10 Investigation Zone
Zone 11 Lakes and Waterways Zone
cl 15, table: Am 2006 No 58, Sch 2.26 [1]; 2007 (53), Sch 1 [2]–[16]; 2010 (218), Sch 1 [4]–[14]; 2010 (288), Sch 1 [2]; 2013 (537), Sch 1 [1]; 2014 No 88, Sch 2.31 [1].
Part 3A Controls relating to miscellaneous permissible uses
pt 3A (cll 15A, 15B): Ins 2010 (218), Sch 1 [15].
15A Controls relating to bed and breakfast accommodation
If development for the purposes of bed and breakfast accommodation is permitted under this plan, the accommodation that is provided to guests must consist of no more than 5 bedrooms.
pt 3A (cll 15A, 15B): Ins 2010 (218), Sch 1 [15].
15B Controls relating to farm stay accommodation
If development for the purposes of farm stay accommodation is permitted under this plan, the accommodation that is provided to guests must consist of no more than 3 bedrooms.
pt 3A (cll 15A, 15B): Ins 2010 (218), Sch 1 [15].
Part 4 Special provisions applying to all land
16 Development consent—matters for consideration
Consent must not be granted for development unless the consent authority—
(a) has had regard to the vision, values and aims of the Lifestyle 2020 Strategy expressed in Part 2, and
(b) is satisfied that such of the development as is proposed to be carried out within a zone is consistent with the relevant objectives for the zone, as set out in the Table to clause 15.
17 Provision of essential infrastructure
Consent must not be granted for development on any land to which this plan applies unless the consent authority—
(a) is satisfied that adequate arrangements have been made for the provision of any infrastructure that is essential for the proposed development, including the following—
(i) a supply of water,
(ii) provision of energy,
(iii) provision of telecommunications,
(iv) a system for the disposal and management of sewage, and
(b) has considered the impacts of the provision of that infrastructure on the land to which the development application relates.
18 Temporary development of land
(1) Despite any other provision of this plan, a person may carry out development on any land with development consent for any purpose for a maximum period of 28 days in any one year.
(2) Consent may be granted under this clause only if, in the opinion of consent authority, the development contributes to the social, environmental, cultural and economic well-being of the community.
(3) To avoid doubt, State Environmental Planning Policy No 1—Development Standards does not apply to a requirement made by subclause (1).
19 (Repealed)
20 Suspension of covenants, agreements or instruments
(1) Any covenant, agreement or similar instrument which affects development allowed by this plan does not apply to the extent necessary to allow the development.
(2) Nothing in subclause (1) affects the rights or interests of any statutory corporation, public authority or Minister of the Crown under any registered instrument.
(3) Pursuant to section 28 of the Act, the Governor approved of subclauses (1) and (2) before this plan was made.
21 Exceptions to development standards
(1) The objectives of this clause are as follows—
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant for development consent has demonstrated that—
(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
Note—
The Environmental Planning and Assessment Regulation 2021 requires the development application to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).
(4) The consent authority must keep a record of its assessment carried out under subclause (3).
(5) (Repealed)
(6) Development consent must not be granted under this clause for a subdivision of land in Zone 1 (1) Rural (Production) Zone and Zone 1 (2) Rural (Living) Zone if—
(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
(7) (Repealed)
(8) This clause does not allow development consent to be granted for development that would contravene any of the following—
(a) a development standard for complying development,
(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated.
(9) The consent authority, in deciding whether to grant development consent, is to consider the following, to the extent that they are relevant to the proposed development—
(a) neighbourhood and local context,
(b) topography,
(c) solar orientation,
(d) neighbourhood amenity and character,
(e) privacy,
(f) overshadowing,
(g) security, safety and access,
(h) local infrastructure,
(i) landscape design,
(j) waste disposal.
cl 21: Subst 2019 (659), Sch 1.15. Am 2023 (524), Sch 1.1[1] [4].
21A Conversion of fire alarms
(1) This clause applies to a fire alarm system that can be monitored by Fire and Rescue NSW or by a private service provider.
(2) The following development may be carried out, but only with development consent—
(a) converting a fire alarm system from connection with the alarm monitoring system of Fire and Rescue NSW to connection with the alarm monitoring system of a private service provider,
(b) converting a fire alarm system from connection with the alarm monitoring system of a private service provider to connection with the alarm monitoring system of another private service provider,
(c) converting a fire alarm system from connection with the alarm monitoring system of a private service provider to connection with a different alarm monitoring system of the same private service provider.
(3) Development to which subclause (2) applies is complying development if it consists only of—
(a) internal alterations to a building, or
(b) internal alterations to a building together with the mounting of an antenna, and any support structure, on an external wall or roof of a building so as to occupy a space of not more than 450mm × 100mm × 100mm.
(4) A complying development certificate for any such complying development is subject to a condition that any building work may only be carried out between 7.00 am and 6.00 pm on Monday to Friday and between 7.00 am and 5.00 pm on Saturday, and must not be carried out on a Sunday or a public holiday.
(5) In this clause—
private service provider means a person or body that has entered into an agreement that is in force with Fire and Rescue NSW to monitor fire alarm systems.
cl 21A: Ins 2019 (659), Sch 2.15.
21B Standards that cannot be used to refuse consent—playing and performing music
(1) The consent authority must not refuse consent to development in relation to licensed premises on the following grounds—
(a) the playing or performance of music, including the following—
(i) the genre of music played or performed, or
(ii) whether the music played or performed is live or amplified, or
(iii) whether the music played or performed is original music, or
(iv) the number of musicians or live entertainment acts playing or performing, or
(v) the type of instruments played,
(b) whether dancing occurs,
(c) the presence or use of a dance floor or another area ordinarily used for dancing,
(d) the direction in which a stage for players or performers faces,
(e) the decoration to be used, including, for example, mirror balls, or lighting used by players or performers.
(2) The consent authority must not refuse consent to development in relation to licensed premises on the grounds of noise caused by the playing or performance of music, if the consent authority is satisfied the noise may be managed and minimised to an acceptable level.
(3) In this clause—
licensed premises has the same meaning as in the Liquor Act 2007.
cl 21B: Ins 2020 (724), Sch 3.
21C Public bushland
(1) The objective of this clause is to protect and ensure the ecological viability of bushland, including rehabilitated areas in urban areas, by—
(a) preserving biodiversity, habitat corridors and links between public bushland and other nearby bushland, and
(b) preserving bushland as a natural stabiliser of the soil surface, and
(c) preserving existing hydrological landforms, processes and functions, including natural drainage lines, watercourses, wetlands and foreshores, and
(d) preserving the recreational, educational, scientific, aesthetic, environmental, ecological and cultural values and potential of bushland, and
(e) mitigating disturbance caused by development.
(2) Development that will disturb, or is reasonably likely to disturb, public bushland is permitted with development consent.
(3) Development consent must not be granted to development that will disturb, or is reasonably likely to disturb, public bushland unless the consent authority is satisfied of the following—
(a) the disturbance of the bushland is essential for a purpose in the public interest,
(b) there is no reasonable alternative to the disturbance,
(c) the development minimises the amount of bushland to be disturbed,
(d) the development includes measures to remediate the disturbed bushland.
(4) Despite subclause (2), development that will disturb, or is reasonably likely to disturb, public bushland is permitted without development consent if the development is for the following purposes—
(a) the construction, operation or maintenance of pipelines to carry water, sewerage or gas or pipelines licensed under the Pipelines Act 1967,
(b) the construction, operation or maintenance of electricity or telecommunication lines,
(c) bush fire hazard reduction,
(d) the construction or maintenance of classified roads,
(e) facilitating the recreational use of the public bushland.
(5) Development specified in subclause (4)(e) is permitted without development consent only if it is carried out in accordance with a plan of management for the public bushland, adopted by the Council in the same way a plan of management is required to be adopted for community land under the Local Government Act 1993, Chapter 6, Part 2, Division 2, that includes measures for the following—
(a) the recreational use of the land,
(b) bush fire hazard reduction,
(c) the prevention of degradation, including the alteration of drainage patterns, rubbish dumping, vehicle intrusion and infestation with weeds or non-native plants,
(d) the remediation of degraded public bushland.
(6) This clause does not require development consent for clearing of native vegetation if the clearing is of a kind that is authorised under the Local Land Services Act 2013, section 60O.
(7) In deciding whether to grant development consent to development on land adjoining public bushland, the consent authority must consider the following—
(a) the need to retain public bushland adjoining the site of the development,
(b) the likely effect of the development on public bushland, including the following—
(i) the erosion of soil,
(ii) the siltation of streams and waterways,
(iii) the spread of weeds and non-native plants within public bushland,
(c) other matters the consent authority considers relevant to the protection and preservation of public bushland.
(8) This clause does not apply to the following land that is public bushland—
(a) land in Zone RU1, RU2, RU3, RU4 or RU5,
(b) land reserved, dedicated or acquired under the National Parks and Wildlife Act 1974,
(c) land within a State forest, flora reserve or timber reserve within the meaning of the Forestry Act 2012,
(d) land to which State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 7 applies.
(9) In this clause—
disturb public bushland means—
(a) remove vegetation from public bushland, or
(b) cause a change in the natural ecology of public bushland that results in the destruction or degradation of the public bushland.
non-native plant means a plant that is not native vegetation.
public bushland means land—
(a) on which there is vegetation that is—
(i) a remainder of the natural vegetation of the land, or
(ii) representative of the structure and floristics of the natural vegetation of the land, and
(b) that is owned, managed or reserved for open space or environmental conservation by the Council or a public authority.
cl 21C: Ins 2022 (629), Sch 2[3].
21D Canal estate development prohibited
(1) Canal estate development is prohibited on land to which this Plan applies.
(2) In this clause—
canal estate development has the same meaning as in the standard instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006.
cl 21D: Ins 2022 (629), Sch 2[4].
Part 5 Special controls for protection of the environment or for particular land
22 Foreshore building lines
(1) The objectives of this clause are—
(a) preservation and enhancement of the natural features and vegetation near where land meets the high water mark, and
(b) restoration of the land below any foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures, and
(c) removal of structures and works below any foreshore building line (particularly on redevelopment of land), other than those excepted by clause 23, and
(d) conservation and enhancement of waterfront structures of heritage value, and
(e) avoidance of adverse ecological effects on the waterways, and
(f) enhancement of the visual amenity of Lake Macquarie.
(2) Clause 7 of the Environmental Planning and Assessment Model Provisions 1980 is adopted for the purposes of this plan.
Note—
Clause 7 of the Environmental Planning and Assessment Model Provisions 1980 allows the Council to fix a foreshore building line and sets out the effect of such a line.
(3) State Environmental Planning Policy No 1—Development Standards applies to a requirement made by clause 7 of those provisions, when adopted for the purposes of this plan, in the same way as it applies to a development standard.
(4) The resolution of the Council cited as Lake Macquarie Foreshore Building Line Resolution and adopted by the Council on 18 July 1988 (copies of which are available from the office of the Council) is taken to have been made under clause 7 (1) of those provisions, as adopted for the purposes of this plan.
(5) Any references in that resolution to a current plan are taken to be references to a current plan within the meaning of the Conveyancing Act 1919.
23 Foreshore development and development below DP high water mark
(1) Foreshore development and development for the purpose of utility installations may be carried out only with development consent between a foreshore building line that is fixed with respect to a DP high water mark and the DP high water mark.
(2) Development below DP high water mark may be carried out only with development consent which must not be granted unless the consent authority is satisfied—
(a) that all existing structures and works on the land below DP high water mark will be removed before or within a reasonable time after development is carried out, or
(b) that it is unreasonable or unnecessary in the circumstances of the case for that removal to occur, having regard to the objectives of clause 22 and the provisions of any relevant development control plan.
cl 23: Am 2007 (53), Sch 1 [17].
24 Subdivision
(1) Despite any other provision of this plan, subdivision of land, other than that identified in subclause (9), may be carried out only with development consent.
(2) Land in any zone may be subdivided only if the consent authority is satisfied—
(a) that the resulting lots will conform to the requirements in Schedule 2 (Subdivision standards) applicable to subdivision in that zone, and
(b) the resulting lots can be developed in accordance with this plan.
(3) To avoid doubt, State Environmental Planning Policy No 1—Development Standards applies to a requirement referred to in subclause (2) (a) in the same way as it applies to a development standard.
(4) Consent must not be granted to a subdivision of land in Zone 2 (1) or 2 (2) for the purpose of small lot housing unless consent has been or is also given to the erection on the land of dwellings that will comprise small lot housing.
(5) Consent must not be granted for a subdivision of land in Zone 2 (1) for the purpose of dual occupancy-attached or dual occupancy-detached unless consent has been or is also granted for the erection on the land of dwellings comprising that form of dual occupancy.
(6) (Repealed)
(7) The subdivision of land in Zone 2 (1) or 2 (2) for small lot housing is prohibited if it would result in the creation of any battle-axe lots.
(8) The subdivision of land in Zone 10 is prohibited unless the lots proposed to be created are to be reserved or dedicated for public open space, public roads or environmental protection purposes.
(9) Consent is not required for a subdivision for the purpose only of any one or more of the following—
(a) widening a public road,
(b) a minor realignment of boundaries that does not create—
(i) additional lots or the opportunity for additional dwellings, or
(ii) lots that are smaller than the minimum size provided for by this plan in relation to the land concerned,
(c) a consolidation of lots that does not create additional lots or the opportunity for additional dwellings,
(d) rectifying an encroachment on a lot,
(e) creating a public reserve,
(f) excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public toilets.
cl 24: Am 2007 (53), Sch 1 [18]; 2010 (218), Sch 1 [16]–[19]; 2011 (276), Sch 1 [2].
25 Demolition
Except as provided otherwise by this plan, the demolition of a building or work requires development consent.
26 Dwelling houses and dual occupancies in Zone 1 (1), 7 (1), 7 (2), 7 (3) or 10
(1) This clause applies to land in Zone 1 (1), 7 (1), 7 (2), 7 (3) or 10.
(2) In this clause—
dwelling lot means—
(a) an existing holding, or
(b) a lot that complies with such of the requirements set out in Schedule 2 (Subdivision standards) as apply to the land comprising the lot.
existing holding means—
(a) except as provided by paragraph (b), a lot, portion or parcel of land as it was on 21 August 1981, or
(b) where, on 21 August 1981, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land, the aggregation of those lots, portions or parcels as they were on that date.
(3) A dwelling must not be erected or created on land to which this clause applies, except in accordance with this clause.
(4) Consent may be granted for the erection or creation of—
(a) a dwelling house or dual occupancy-attached on a dwelling lot in Zone 1 (1), 7 (2) or 7 (3), or
(b) a dwelling house on a dwelling lot in Zone 7 (1) or 10.
(5) Consent must not be granted for the erection or creation of a dwelling house or dual occupancy-attached on a dwelling lot if its erection or creation would mean—
(a) if the lot is in Zone 1 (1), 7 (1), 7 (2), 7 (3) or 10—that there is more than one dwelling house on the dwelling lot (counting any dwelling house already on the lot), or
(b) if the lot is in Zone 1 (1), 7 (2) or 7 (3)—that there are more than two dwellings on the dwelling lot (counting any dwelling already on the lot).
(6) Consent must not be granted for the erection or creation of a dual occupancy-attached or dual occupancy-detached on a neighbourhood lot in Zone 7 (3).
(7) If consent is granted for the erection or creation of a dwelling house or a dual occupancy-attached on land comprising an existing holding, the consent authority may impose a condition of consent that requires the consolidation of all lots, portions or parcels that comprise that existing holding.
cl 26: Am 2007 (53), Sch 1 [19]–[21].
27 Dwelling houses, small lot housing and dual occupancies in Zone 1 (2), 2 (1), 2 (2) or 7 (5)
(1) This clause applies to land in Zone 1 (2), 2 (1), 2 (2) or 7 (5).
(2) In this clause—
dwelling lot means a lot that—
(a) was a lawfully created lot at the commencement of this plan, or
(b) is a lot lawfully created after that commencement under a development consent granted before or after that commencement, or
(c) complies with such of the requirements set out in Schedule 2 (Subdivision standards) as apply to the land comprising the lot.
(3) A dwelling must not be erected or created on land to which this clause applies, except in accordance with this clause.
(4) Consent may be granted for the erection or creation of—
(a) a dwelling house on a dwelling lot in Zone 2 (2), or
(b) a dwelling house or dual occupancy-attached on a dwelling lot in Zone 1 (2) or 7 (5), or
(c) a dwelling house, dual occupancy-attached or dual occupancy-detached on a dwelling lot in Zone 2 (1).
(5) Consent must not be granted for the erection or creation of a dwelling house, dual occupancy-attached or dual occupancy-detached on a dwelling lot if its erection or creation would mean—
(a) if the lot is in Zone 1 (2), 2 (1), 2 (2) or 7 (5)—that there is more than one dwelling house on the dwelling lot (counting any dwelling house already on the lot), or
(b) if the lot is in Zone 1 (2), 2 (1) or 7 (5)—that there are more than two dwellings on the dwelling lot (counting any dwelling already on the lot).
(6) Consent must not be granted for the erection or creation of a dual occupancy-attached or dual occupancy-detached on a neighbourhood lot in Zone 1 (2) or 7 (5).
(7) Consent must not be granted for the erection or creation of a dual occupancy-attached or dual occupancy-detached on a battle-axe lot in Zone 2 (1).
(8) Consent must not be granted for the erection or creation of small lot housing in Zone 2 (1) or 2 (2)—
(a) on a battle-axe lot, or
(b) on a lot less than 1,000 square metres in area.
(9) Consent must not be granted to the erection or creation in Zone 2 (1) of—
(a) a dual occupancy-attached on a lot less than 500 square metres in area, or
(b) a dual occupancy-detached on a lot less than 600 square metres in area.
cl 27: Am 2007 (53), Sch 1 [22]–[24]; 2010 (218), Sch 1 [20].
28 Dwelling houses on South Wallarah Peninsula in Zone 7 (1)
Despite any other provision of this plan, a person must not erect a dwelling house on an allotment of land within Zone 7 (1) within the South Wallarah Peninsula, being the land south of the land to which Lake Macquarie Local Environmental Plan 2000—North Wallarah Peninsula applies, unless the allotment has an area of not less than 100 hectares.
28A Residential flat buildings and multiple dwelling housing in Zone 2 (2)
(1) Consent must not be granted to the erection or creation of a residential flat building on—
(a) an irregular or standard corner allotment in Zone 2 (2) unless the allotment has a minimum area of 1,500 square metres and a minimum width of 30 metres, or
(b) a battle-axe allotment in Zone 2 (2) unless the allotment has a minimum area of 2,000 square metres and the battle-axe access handle has a minimum width of 8 metres, or
(c) any other irregular allotment or standard allotment in Zone 2 (2) unless the allotment has a minimum area of 1,200 square metres and a minimum width of 30 metres.
(2) Consent must not be granted to the erection or creation of multiple dwelling housing on—
(a) a corner allotment in Zone 2 (2) unless the allotment has a minimum area of 1,200 square metres and a minimum width of 30 metres, or
(b) a battle-axe allotment in Zone 2 (2) unless the allotment has a minimum area of 1,500 square metres and the battle-axe access handle has a minimum width of 8 metres, or
(c) any other allotment in Zone 2 (2) unless the allotment has a minimum area of 900 square metres and a minimum width of 25 metres.
(3) In this clause—
width means the distance of the perpendicular line between the side boundaries, as measured at the front building setback.
cl 28A: Ins 2010 (218), Sch 1 [21].
29 Building heights
(1) (Repealed)
(2) In considering an application for consent to the erection of a building the whole or part of which exceeds 8 metres, the consent authority must take into consideration whether that height is compatible with the heights of other buildings in the immediate vicinity or locality and is compatible with—
(a) the site attributes, and existing or proposed uses of the land to which the application relates, and
(b) the other requirements of this plan and the provisions of any relevant development control plan.
(3) In the instance of development in proximity to an airport, the heights of buildings must comply with the applicable Obstacle Limitation Surface.
cl 29: Am 2007 (53), Sch 1 [25] [26].
30 Control of pollution
Consent must not be granted to development unless the consent authority is satisfied that all reasonable and practicable control measures will be implemented to minimise pollution likely to arise from carrying out that development.
Note—
Pollution may be of air, noise or water. Water pollution includes nutrient and sediment loading.
31 Erosion and sediment control
(1) This clause applies to development that involves or that, in the opinion of the consent authority, may give rise to the exposure of the soil surface of land to the action of wind or water, whether as a consequence of—
(a) the carrying out of earthworks, or
(b) the destruction or removal of vegetation, or
(c) the carrying out of any other class of development.
(2) Consent must not be granted to development to which this clause applies unless—
(a) the consent authority is satisfied that all reasonable and practicable control measures will be carried out to prevent or minimise the effects of erosion and sediment, and
(b) where the area of soil surface exposure is greater than 250 square metres, but less than 2,500 square metres, the consent authority has considered an erosion and sediment control plan complying with erosion and sediment control guidelines adopted by the Council, and whether the consent will include a condition requiring the development to be carried out in accordance with that plan, and
(c) where the area of soil surface exposure is 2,500 square metres or greater, the consent authority has considered a soil and water management plan complying with construction guidelines adopted by the Council, and whether the consent will include a condition requiring the development to be carried out in accordance with that plan.
32 Flood prone land
(1) Despite any other provision of this plan, a person must not erect a structure or carry out a work on flood prone land without development consent.
(2) Before granting consent required by this clause, the consent authority must—
(a) consider the contents of any flood management plan or development control plan applying to the land that has been prepared in accordance with the principles contained in the flood management manual, which is available from the office of the Council, and
(b) be satisfied that to carry out the development in accordance with the consent would be consistent with flood hazard and levels of risk that are acceptable to the community.
(3) The consent authority may, by a condition of consent to the carrying out of development referred to in subclause (1), require all floors or levels of the structure or work to be at a height sufficient, in the opinion of the consent authority, to prevent or reduce the incidence of flooding of that structure or work, or of adjoining land.
33 Bush fire considerations
(1) This clause applies to bush fire prone land.
Note—
Section 146 of the Act provides that bush fire prone land is land recorded by the Council as such on a map certified by the Commissioner of the NSW Rural Fire Service as a bush fire prone land map for the area of the Council.
(2) A person must not carry out bush fire hazard reduction work without development consent unless the person is authorised to carry out the work without consent by or under the Rural Fires Act 1997 or another Act.
(3) Before granting consent required by this clause, the consent authority must—
(a) have regard to the relevant provisions of Planning for Bush Fire Protection, available at the office of the Council, and
(b) be satisfied that—
(i) the measures proposed to avoid or mitigate the threat from bush fire, including the siting of the proposed development, the design of, and materials used in, any structures involved, the clearing of vegetation, and the provision of asset protection zones, landscaping and fire control aids (such as roads and water supplies), are adequate for the locality, and
(ii) as far as possible, the potential impact on the environment of mitigation measures proposed is minimised.
(4) A development application lodged with the Council, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Planning for Bush Fire Protection) 2020 is to be determined as if that Policy had not commenced.
(5) In this clause—
Planning for Bush Fire Protection means the document prescribed by the Environmental Planning and Assessment Regulation 2021, section 271.
cl 33: Am 2007 No 82, Sch 3.15 [1] [2]; 2020 (69), Sch 1.6[1] [2]; Am 2023 (83), Sch 1.4[1] [2].
34 Trees and native vegetation
Note—
Part 6 contains controls relating to trees that are heritage items or within heritage conservation areas.
(1) This clause applies to all land except—
(a) State forest or other Crown-timber lands within the meaning of the Forestry Act 1916, or
(b) land within Zone 8.
(2) Except as provided by subclause (3), a person must not clear any tree or any native vegetation unless in accordance with a development consent that is in force.
(3) Consent is not required for—
(a) the clearing of trees or native vegetation authorised or required by or under the Electricity Supply Act 1995, or
(b) the clearing of trees or native vegetation authorised or required by or under the Roads Act 1993, or
(c) the clearing or harvesting of trees grown commercially or domestically for their edible fruit, or
(d) the control of noxious weeds within the meaning of the Noxious Weeds Act 1993, or
(e) the clearing of commercially grown plantation trees in accordance with the Plantations and Reafforestation Act 1999, or
(f) the clearing of native vegetation without consent if authorised under the Native Vegetation Conservation Act 1997, any other Act or another environmental planning instrument, or
(g) the removal of hazardous dead trees within Zone 2 (1), 2 (2), 3 (1), 3 (2), 4 (1), 4 (2), 4 (3), 5, 6 (1) or 6 (2), except where the trees provide habitat for species listed in Schedule 1 or 2 to the Threatened Species Conservation Act 1995, or
(h) the removal of native vegetation on land, other than in Zone 7 (1), for the purpose of creating or maintaining landscaped and lawn areas where—
(i) the removal, injury or destruction of trees is not involved, and
(ii) the area to be cleared is less than 600 square metres in total and is on the same allotment as, and within the curtilage of, a dwelling for which development consent has been granted, and
(iii) the soil surface exposed in any period of 90 consecutive days will not exceed 250 square metres, and
(iv) the slope of the land does not exceed 15 degrees, and
(v) the work does not involve the disturbance of native vegetation which is habitat for species listed in Schedule 1 or 2 to the Threatened Species Conservation Act 1995, and
(vi) the area is not subject to a development consent that requires the trees or native vegetation to be retained, or
(i) bushfire hazard reduction work, within the meaning of the Rural Fires Act 1997, that is exempted from any requirement for development consent by the operation of that Act, or
(j) the clearing of any tree (other than any tree listed on the Council’s Significant Tree Register) or native vegetation that is—
(i) within 5 metres of the outermost projection of a lawfully used building (being a building that is not exempt development), and
(ii) on the same allotment as that building,
but only if a development consent does not require the tree or native vegetation to be retained, or
(k) the clearing of any tree (other than a tree listed on the Council’s Significant Tree Register) or native vegetation that is—
(i) within 1 metre of a sealed driveway to a lawfully used building (being a building that is not exempt development), and
(ii) on the same allotment as that building,
but only if a development consent does not require the tree or native vegetation to be retained, or
(l) the clearing of any tree or native vegetation where the Council is satisfied beforehand that the tree or native vegetation ought to be cleared because it is dangerous to life or property, or
(m) the clearing of any tree or native vegetation required by an order given under Division 1 of Part 2 of Chapter 7 of the Local Government Act 1993.
(4) Consent must not be granted for the clearing of any tree or native vegetation unless the consent authority has considered a statement of environmental effects that assesses in respect of the vicinity of the proposed clearing—
(a) soil stability and prevention of land degradation, and
(b) water quality and associated ecosystems such as streams, rivers, waterbodies or waterways, and
(c) scenic or environmental amenity, and
(d) vegetation species, vegetation communities, flora and fauna corridors and natural wildlife habitats.
(5) Nothing in this clause affects any requirement made by or under the Native Vegetation Conservation Act 1997.
cl 34: Am 2007 (53), Sch 1 [27]–[31].
35 Acid sulfate soils
(1) For the purpose of this clause, works means—
(a) any disturbance of more than one 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 and flood mitigation works), or
(b) any other works that are likely to lower the water table, or
(c) routine maintenance.
(2) A person must not, without development consent, carry out works described in the following Table on land of the class specified for those works, except as provided by subclause (3).
| Class of land as shown on Acid Sulfate Soils Planning Maps | Works | | 1 | Any works. | | 2 | Works below the natural ground surface.Works by which the watertable is likely to be lowered. | | 3 | Works beyond 1 metre below the natural ground surface.Works by which the watertable is likely to be lowered beyond 1 metre below natural ground surface. | | 4 | Works beyond 2 metres below the natural ground surface.Works by which the watertable is likely to be lowered beyond 2 metres below natural ground surface. | | 5 | Works within 500 metres of adjacent Class 1, 2, 3 or 4 land which are likely to lower the watertable below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land. |
(3) This clause does not require consent for the carrying out of those works if—
(a) a copy of a preliminary assessment of the proposed works, undertaken in accordance with the Acid Sulfate Soil Manual, has been given to the Council, and
(b) the Council has provided written advice to the person proposing to carry out the works confirming that the results of the preliminary assessment indicate the proposed works need not be carried out pursuant to an acid sulfate soils management plan prepared in accordance with the Acid Sulfate Soil Manual.
(4) Consent required by this clause must not be granted unless the consent authority has considered—
(a) the adequacy of an acid sulfate soils management plan prepared for the proposed development in accordance with the Acid Sulfate Soil Manual, and
(b) the likelihood of the proposed development resulting in the discharge of acid water, and
(c) (Repealed)
(5) Despite subclause (2), development may be carried out by the Council or the Hunter Water Corporation without consent, being development consisting of—
(a) emergency works, or
(b) routine management, or
(c) minor works.
(6) Where the Council or the Hunter Water Corporation carries out development described in subclause (5) and encounters, or is likely to encounter, acid sulfate soils, the Council or the Hunter Water Corporation must properly deal with those soils in accordance with the proposed development in accordance with the Acid Sulfate Soil Manual so as to minimise the actual or potential impact on the environment arising from the disturbance of the soils.
cl 35: Am 2008 (571), Sch 3.99 [1].
36 Mixed use development
(1) Consent must not be granted for mixed use development unless the consent authority is satisfied that—
(a) the gross floor area that will be used for commercial, retail or recreation facilities (including recreational facilities (indoor) for development in Zone B4) will be not less than 20 percent of the total gross floor area within the site area to which the development application relates, and
(b) the gross floor area that will be used for dwellings and any accommodation for tourists will be not less than 50 percent of that total.
(2) Despite subclause (1), the Council may grant consent for mixed use development even though the gross floor area that will be used for commercial, retail or recreation facilities is less than 20% of the total gross floor area within the site if it is satisfied—
(a) that the proposed gross floor area is justified on economic grounds, and
(b) that the proposed development will provide an active street frontage.
(3) In considering whether it is satisfied of the matters referred to in subclause (2), the Council must take into account the matters listed in clause 21 (a)–(j) to the extent that they are relevant to the proposed development.
(4) In this clause—
active street frontage means a street frontage that enables direct visual and physical contact between the street and the interior of the building. Clearly defined entrances, windows and shop fronts are elements of the building façade that contribute to an active street frontage.
cl 36: Am 2010 (218), Sch 1 [22]; 2010 (288), Sch 1 [3].
37 Unzoned land
(1) A person must not carry out development on unzoned land without development consent.
(2) Development of unzoned land is not exempt or complying development, despite any other provision of this plan.
(3) Consent must not be granted for development of unzoned land unless the consent authority has considered the objectives of the zones in which adjoining land is situated.
38 Advertising structures and signs
Despite any other provision of this plan, the erection and use of an advertising sign or advertising structure of a type referred to in Schedule 1 requires consent if it is not exempt development.
39 Additional development allowed on certain land
(1) Nothing in this plan prevents a person, with development consent, from carrying out on land described in Column 1 of Schedule 7 any development specified in relation to that land in Column 2 of Schedule 7, subject to such conditions (if any) as may be so specified.
(2) If any development specified in Schedule 7 in relation to land is permissible with development consent subject to a condition that consent to the development must be obtained or applied for within a specified period, the consent authority is not prevented from granting consent after that period to the carrying out of alterations or extensions to, or the rebuilding of, a structure or place on that land for which such a consent has been granted.
40 Development for the purpose of agriculture on land in Zone 7 (2)
(1) In this clause—
nominated owner means the person who, on the appointed day, owned a retained holding.
retained holding means—
(a) a lot, portion or parcel of land as it was on the appointed day, or
(b) where, on the appointed day, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land, the aggregation of those lots, portions or parcels as they were on that day.
(2) This clause applies to a retained holding only if—
(a) not less than 70% of the retained holding is within Zone 7 (2), and
(b) immediately prior to the appointed day, the retained holding was within a zone in which development for the purpose of agriculture was permissible either with or without consent.
(3) Nothing in this plan prevents the nominated owner from carrying out development on a retained holding for the purpose of agriculture (other than intensive agriculture), but only with development consent.
41 Development for the purpose of retirement villages
(1) This clause aims to maintain the opportunity for the development of retirement village style accommodation for aged persons in appropriate locations where the land satisfies the criteria specified in subclause (5).
(2) This clause applies to—
(a) land within Zone 2 (1), and
(b) land that is not within Zone 2 (1), 7 (1), 7 (4), 8 or 9, but part or all of which immediately adjoins, or is within 400 metres of, land within Zone 2 (1).
(3) In this clause—
retirement village means a complex containing residential premises that are predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by persons aged 55 years or older, which provides access to meals, cleaning, emergency assistance, and a transport service for residents.
(4) Nothing in this plan prevents a person, with development consent, from carrying out development on any land to which this clause applies for the purpose of a retirement village.
(5) Despite subclause (4), consent may be granted to development for the purpose of a retirement village only if the consent authority is satisfied that—
(a) the land on which the development will be carried out is of sufficient size to accommodate a minimum 70 unit retirement village development, and
(b) the land has frontage to a formed public road servicing nearby urban areas, and
(c) the development is able to be serviced with reticulated water, sewerage and electricity, and
(d) at least 70% of the proposed development area comprises land with a slope of less than 20% grade.
42 Consent to development subject to special requirements
(1) Consent must not be granted to development on any land described in Column 1 of Schedule 8 unless the consent authority has had regard to the development control plan or master plan required for the land by Column 2 of that Schedule.
(2) Consent must not be granted to development on any land described in Column 1 of Schedule 9 unless the consent authority is satisfied, whether by the imposition of a condition on the consent or otherwise) that any requirement specified for the land in Column 2 of that Schedule has been or will be met.
42A Restricted development
Despite any other provision of this plan, the only development permissible on land described in Column 1 of Schedule 11 is development specified for the land in Column 2 of that Schedule.
cl 42A: Ins 2006 (430), Sch 1 [1].
42B Environmentally sensitive land
(1) The objectives of this clause are as follows—
(a) to ensure that adverse impacts of proposed development on environmentally sensitive land are minimised or offset,
(b) to identify the land to which this clause applies as environmentally sensitive land.
(2) This clause applies to the land shown edged heavy black and identified as “Clause 42B” on the maps, or sheets of maps, marked as follows—
Lake Macquarie Local Environmental Plan 2004 (Amendment No 50)—Sheet 2
Lake Macquarie Local Environmental Plan 2004 (Amendment No 59)—Sheet 1
Lake Macquarie Local Environmental Plan 2004 (Amendment No 61)—Sheet 2
(3) When assessing a development application for development on land to which this clause applies, the Council must consider—
(a) whether the proposed development will have an adverse impact on the condition and significance of the vegetation on the land, and
(b) the importance of that vegetation to the growth and survival of native fauna, and
(c) whether the proposed development has the potential to fragment, disturb or diminish the biodiversity values of the land.
(4) Before granting development consent to development on land to which this clause applies, the Council must be satisfied that—
(a) the development is sited, designed and managed to avoid potential adverse environmental impacts, or
(b) if an impact cannot be avoided by adopting feasible alternatives, the proposed development will mitigate, minimise or offset that impact.
cl 42B: Ins 2013 (229), Sch 1 [1]. Am 2013 (588), Sch 1 [1]; 2014 (275), Sch 1 [1].
Part 6 Heritage provisions
43 Objective
The objective of this Part is to protect and conserve archaeological sites and places of Aboriginal, natural or European cultural significance. It does this by making provisions that conserve the remaining fabric, relics, settings and views, and evidence of the cultural significance of heritage items and the environment of heritage conservation areas.
44 Protection of heritage items and heritage conservation areas
The following development may be carried out only with development consent—
(a) demolition of, or movement of the whole or a part of, a heritage item,
(b) demolition of, or movement of, a building, structure, work, relic or tree within a heritage conservation area,
(c) alteration of, or any addition to, a heritage item that makes substantial structural or non-structural changes to its exterior, such as to its detail, fabric, finish or appearance,
(d) alteration of a building, a structure, work, relic, or tree within a heritage conservation area by making substantial structural or non-structural changes to its exterior, such as to its detail, fabric, finish or appearance,
(e) alteration of a heritage item by making substantial structural changes to its interior,
(f) disturbance or excavation of a place of Aboriginal heritage significance or an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,
(g) erection of a structure on, or subdivision of, land on which a heritage item is located or which is within a heritage conservation area.
Note—
The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).
cl 44: Am 2008 (571), Sch 3.99 [2].
45 Development consent is not required
(1) Development consent is not required by clause 44 if, in the opinion of the Council—
(a) the proposed development is of a minor nature or consists of maintenance of a heritage item or of a building, work, archaeological site, tree or place within a heritage conservation area, and
(b) the proposed development would not adversely affect the significance of the heritage item or heritage conservation area.
46 Cemetery or burial grounds
Development consent is not required for the following development in a cemetery or burial ground if there will be no disturbance to human remains, to relics in the form of grave goods or to a place of Aboriginal heritage significance—
(a) the creation of a new grave or monument,
(b) an excavation or disturbance of land for the purpose of carrying out conservation or repair of monuments or grave markers.
47 Assessment of heritage significance
(1) Before granting consent required by this Part, the consent authority must assess the extent to which the carrying out of the proposed development will affect the heritage significance of the heritage item or heritage conservation area concerned.
(2) In the case of proposed development that would affect a heritage item, that assessment must include consideration of a heritage impact statement that addresses—
(a) the heritage significance of the item as part of the environmental heritage of Lake Macquarie City local government area,
(b) the impact that the proposed development will have on the heritage significance of the item and its setting, including any landscape or cultural features,
(c) the measures proposed to conserve the heritage significance of the item and its setting,
(d) whether any archaeological site or potential archaeological site will be adversely affected by the proposed development,
(e) the extent to which the carrying out of the proposed development will affect the form of any historic subdivision.
(3) In the case of proposed development in a heritage conservation area, that assessment must include consideration of a heritage impact statement that addresses the following—
(a) the heritage significance of the heritage conservation area and the contribution which any building, work, relic, tree or place affected by the proposed development makes to this heritage significance,
(b) the impact that the proposed development will have on the heritage significance of the heritage conservation area,
(c) the compatibility of the proposed development with nearby original buildings and the character of the heritage conservation area, taking into account the size, form, scale, orientation, setbacks, materials and detailing of the proposed development,
(d) the measures proposed to conserve the significance of the heritage conservation area and its setting,
(e) whether any landscape or horticultural features will be affected by the proposed development,
(f) whether any archaeological site or potential archaeological site will be affected by the proposed development,
(g) the extent to which the carrying out of the proposed development in accordance with the consent will affect any historic subdivision pattern.
48 Development requiring notification
(1) A development application proposing the following development requires notification in accordance with Lake Macquarie Development Control Plan No 1—Principles of Development—
(a) the demolition of a heritage item,
(b) the carrying out of any development allowed by clause 53 (Conservation incentives).
(2) Subclause (1) does not apply to designated development.
cl 48: Am 2021 (716), Sch 1.11.
49 (Repealed)
50 Development affecting places or sites of known or potential Aboriginal heritage significance
(1) Consent must not be granted for development that is likely to have an impact on a place of Aboriginal heritage significance or a potential place of Aboriginal heritage significance, or that will be carried out on an archaeological site of a relic that has Aboriginal heritage significance, unless the consent authority has considered a heritage impact statement explaining how the proposed development would affect the conservation of the place or site and any relic known or reasonably likely to be located at the place or site.
(2) Except where the proposed development is integrated development, the consent authority must notify the local Aboriginal communities (in such a way as it thinks appropriate) of the development application and take into consideration any comments received in response within 21 days after the relevant notice is sent.
(3) (Repealed)
(4) In the instance of development in proximity to items or places identified in Schedule 6 or recorded or held by a local Aboriginal Land Council, consultation with the relevant local Aboriginal Land Council is required before consent may be granted. Consultation is sufficient for the purposes of this requirement if the consent authority has taken into consideration all comments received from the local Aboriginal Land Council within 21 days after a copy of the application and statement are sent to it by the consent authority.
cl 50: Am 2008 (571), Sch 3.99 [4] [5].
51 Development affecting known or potential archaeological sites or relics of European heritage significance
(1) Consent must not be granted for development that will be carried out on an archaeological site or potential archaeological site or a relic that has European heritage significance identified in Schedule 4 (whether or not it is also the site of a relic or potential relic of Aboriginal significance) unless the consent authority has considered a heritage impact statement explaining how the proposed development would affect the conservation of the place or site and any relic known or reasonably likely to be located at the place or site.
(2) Before granting consent to development under this clause, the consent authority must be satisfied that any necessary excavation permit required by the Heritage Act 1977 has been granted.
(3) (Repealed)
(4) This clause does not apply if the proposed development does not involve disturbance of below ground deposits and the consent authority is of the opinion that the heritage significance of any above ground relics would not be adversely affected by the proposed development.
cl 51: Am 2008 (571), Sch 3.99 [6]; 2011 (276), Sch 1 [3].
52 Development in vicinity of a heritage item
(1) Consent must not be granted for development in the vicinity of a heritage item unless the consent authority has considered a heritage impact statement that includes recommendations for the size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works, and for any modification that will reduce the impact of the proposed development on the heritage significance of the heritage item.
(2) Development is in the vicinity of a heritage item for the purposes of this clause if, in the opinion of the consent authority, the development—
(a) may have an impact on the setting of a heritage item, for example, by affecting a significant view to or from the item or by overshadowing, or
(b) may undermine or otherwise cause physical damage to a heritage item, or
(c) will otherwise have any adverse impact on the heritage significance of a heritage item or of any heritage conservation area within which it is situated.
(3) Before granting consent for development to which this clause applies, the consent authority must take into account the impact of the proposed development on the heritage significance of the heritage item, on any heritage conservation area within which it is situated and on the visual curtilage and setting of the heritage item.
(4) A heritage impact statement required by this clause should include recommendations for the size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works and details of any modification that would reduce the impact of the proposed development on the heritage significance of the heritage item.
53 Conservation incentives
Consent may be granted to the use of a building that is a heritage item, or of the land on which such a building is erected (even though the use would be otherwise prohibited by this plan) if the consent authority is of the opinion that—
(a) the retention of the heritage item depends on the granting of consent, and
(b) the proposed use will be in accordance with a conservation management plan which has been prepared to the satisfaction of the Council, and
(c) the granting of consent to the proposed use will ensure that all necessary conservation work identified in the conservation management plan is carried out, and
(d) the proposed use will not adversely affect the heritage significance of the heritage item or its setting, and
(e) the proposed use will not adversely affect the amenity of the surrounding area.
54 Development in heritage conservation areas
(1) Before granting consent for the erection of a building within a heritage conservation area, the consent authority must be satisfied that the features of the proposed building will be compatible with the heritage significance of the heritage conservation area, having regard to the form of, and materials used in, buildings that contribute to the heritage significance of the heritage conservation area.
(2) In forming that opinion, the consent authority must consider, where relevant—
(a) the scale, bulk and form, including detailing and articulation, of the building, and
(b) the pitch and form of the roof, and
(c) the style, size, proportion and position of the openings for windows or doors, and
(d) the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building, and
(e) any other matter that the consent authority considers relevant to the assessment of the application.
Part 7 Administrative provisions
55 Acquisition of land required for community purposes
(1) The owner of land within Zone 2 (1), 3 (1), 4 (1), 4 (2), 5, 6 (1), 6 (2), 7 (1), 7 (2) or 10 and shown cross-hatched (but not otherwise hatched) on the map may, by notice in writing, require the Council to acquire the land.
(2) On receipt of a notice referred to in subclause (1), but subject to subclause (3), the Council must acquire the land.
(3) However, nothing in this plan, other than subclause (4), requires the Council to acquire land—
(a) if the land may be required to be dedicated to the Council as a condition of consent to the carrying out of development, or
(b) within Zone 6 (1) or 7 (2) if, in the opinion of the Council, the need for the open space has not yet been created by residential development in the vicinity.
(4) On receipt of a notice referred to in subclause (1), the Council must acquire land within Zone 6 (1) or 7 (2) if the Council is of the opinion that the owner of the land will suffer hardship if the land is not acquired within a reasonable time.
Note—
If land, other than land shown cross-hatched on the map, is required to be acquired under the owner-initiated acquisition provisions, the Minister for Planning is required to take action to enable the designation of the acquiring authority. Pending the designation of the acquiring authority for that land, the acquiring authority is to be the authority determined by order of the Minister for Planning (see section 21 of the Land Acquisition (Just Terms Compensation) Act 1991).
cl 55: Am 2007 (53), Sch 1 [32]; 2008 (556), Sch 1 [1].
56 Interim development of land required for community purposes
(1) A person must not carry out development without development consent on land within Zone 2 (1), 3 (1), 4 (1), 4 (2), 5, 6 (1), 6 (2), 7 (1), 7 (2) or 10, and shown by cross-hatching on the map, before it is acquired in accordance with this plan.
(2) A person must not carry out development on land referred to in subclause (1) that may be required to be acquired by the Council so as to render the land unfit for the purpose for which it is zoned.
(3) Consent must not be granted for development of land referred to in subclause (1) before it is acquired in accordance with this plan unless the consent authority has considered—
(a) the need for the proposed development on the land, and
(b) the impact of the proposed development on the existing and likely future use of the land, and
(c) the need to retain the land for its existing or likely future use, and
(d) the effect of the proposed development on the cost of acquisition, and
(e) the imminence of acquisition, and
(f) the cost of reinstatement of the land for the purpose for which the land is to be acquired.
(4) Conditions may be imposed on such a consent that limit the period during which development may be carried out in accordance with the consent and require—
(a) the removal of any structure or work for which the consent was granted, and
(b) the reinstatement of the land or removal of any waste, refuse or contaminants,
without the payment of compensation by the Council.
57 Acquisition of land required for State roads
(1) The owner of any land within Zone 5 identified by hatching (other than cross-hatching) on the map may, by notice in writing, require the RTA to acquire that land.
(2) On receipt of such a notice, the RTA must acquire the land if—
(a) the land is vacant, or
(b) the land is not vacant but—
(i) is included in a 5 year works program of the RTA, current at the time of receipt of the notice, or
(ii) the RTA will not give concurrence required by clause 56 for development of the land, or
(iii) the RTA is of the opinion that the owner of the land will suffer hardship if the land is not acquired within a reasonable time.
(3) The RTA is not required to acquire land if, because of development consent, that land could reasonably be expected to be dedicated for a State road.
58 (Repealed)
59 Acquisition of coastal land
Note—
Nothing in this clause is to be construed as requiring a public authority to acquire land—see section 27 (3) of the Act.
(1) This clause applies to land within Zone 7 (1) or 7 (4) shown by hatching (but not cross-hatching) on the map.
(2) The owner of any land to which this clause applies may, by notice in writing, require the corporation to acquire the land.
(3) On receipt of a notice referred to in subclause (2), the corporation must acquire the land, unless the land may be required to be provided as a condition of consent to the carrying out of development.
(4) Despite any other provision of this plan, development may be carried out only with development consent on land to which this clause applies and only for the purpose of the following—
(a) agriculture (and buildings incidental to the use of the land for agriculture),
(b) dams,
(c) drainage,
(d) dwelling houses.
(5) (Repealed)
(6) Before granting consent under subclause (4), the Council must take into consideration the following—
(a) the need for the proposed development on the land,
(b) the impact of the proposed development on the existing and likely future use of the land,
(c) the need to retain the land for its existing or likely future use,
(d) the effect of the proposed development on the cost of acquisition,
(e) the imminence of acquisition,
(f) the cost to reinstate the land for the purpose for which the land is to be acquired.
cl 59: Am 2008 (571), Sch 3.99 [8]–[10].
60 Development on land adjoining Zones 5, 7 (1), 7 (4) and 8
(1) Consent must not be granted for development on land adjoining land within Zone 5 unless the consent authority is satisfied that the proposed development will be consistent with the efficient operation of the potential or existing infrastructure development within the zone.
(2) Consent must not be granted to development on land adjoining or adjacent to land within Zone 7 (1) unless the consent authority is satisfied that the proposed development is consistent with the effective conservation of the land within Zone 7 (1) and its protection from adverse impacts, including stormwater run-off, erosion and sedimentation, pollution, weed infestation, feral or domestic animals, chemicals, nutrients and the like.
(2A) Consent must not be granted to development on land adjoining or adjacent to land within Zone 7 (4) unless the consent authority is satisfied that the proposed development is consistent with—
(a) the effective conservation of the coastal corridor and cultural heritage within the zone, and
(b) the provision of the coastal walk and public access within the zone, and
(c) the protection of land within the zone from—
(i) any adverse impacts on the scenic or visual values of the land, and
(ii) any stormwater runoff, erosion and sedimentation, pollution, weed infestation, feral or domestic animals, chemicals, nutrients and the like.
(3) The consent authority must not grant consent to development on land adjoining or adjacent to land within Zone 8 if it is of the opinion that the proposed development is not consistent with the provisions contained in the Guidelines for developments adjoining Department of Environment and Climate Change land (as in force on the day on which this subclause, as substituted by State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008, commenced).
cl 60: Am 2007 (53), Sch 1 [33]; 2008 (571), Sch 3.99 [11].
61 Classification and reclassification of public land as operational land
(1) The public land referred to in Part 1 or Part 2 of Schedule 3 is classified or reclassified as operational land for the purposes of the Local Government Act 1993.
(1A) The public land described in Part 1 of Schedule 3—
(a) does not cease to be a public reserve to the extent (if any) that it is a public reserve, and
(b) continues to be affected by any trusts, estates, interests, dedications, conditions, restrictions or covenants that affected the land before its classification, or reclassification, as operational land.
(2) In accordance with section 30 of the Local Government Act 1993, land described in Columns 1 and 2 of Part 2 of Schedule 3, to the extent (if any) that it is a public reserve, ceases to be a public reserve on the commencement of the relevant amending plan and, by the operation of that plan, is discharged from all trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land except—
(a) those (if any) specified for the land in Column 3 of Part 2 of Schedule 3, and
(b) any reservations that except land out of a Crown grant relating to the land, and
(c) reservations of minerals (within the meaning of the Crown Land Management Act 2016).
(3) Before the relevant amending plan inserted a description of land in Part 2 of Schedule 3, the Governor approved of subclause (2) applying to the land.
(4) In this clause, the relevant amending plan, in relation to land described in Part 2 of Schedule 3, means this plan or, if the description of the land is inserted into that Part by another local environmental plan, that plan.
cl 61: Am 2006 (430), Sch 1 [2]; 2011 (634), Sch 1 [1]–[3]; 2012 No 42, Sch 2.20; 2019 (621), Sch 2.11[1].
62 Public infrastructure in urban release areas
(1), (2) (Repealed)
(3) This clause prevails over any other provision of this plan to the extent of any inconsistency.
(4)–(5) (Repealed)
(6) Public utility infrastructure Development consent must not be granted for development on land in an urban release area unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.
(7) Subclause (6) does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure.
(8) Interpretation In this clause—
public utility infrastructure means infrastructure for any of the following purposes—
(a) the supply of water,
(b) the supply of electricity,
(c) the disposal and management of sewage.
urban release area means the land shown edged heavy black on the following maps—
Lake Macquarie Local Environmental Plan 2004 (Amendment No 11)
Lake Macquarie Local Environmental Plan 2004 (Amendment No 14)—Sheet 3.
Lake Macquarie Local Environmental Plan 2004 (Amendment No 20)—Sheet 1
Lake Macquarie Local Environmental Plan 2004 (Amendment No 24)—Sheet 2
Lake Macquarie Local Environmental Plan 2004 (Amendment No 33)—Sheet 2
Lake Macquarie Local Environmental Plan 2004 (Amendment No 36)—Sheet 1
Lake Macquarie Local Environmental Plan 2004 (Amendment No 38)
Lake Macquarie Local Environmental Plan 2004 (Amendment No 41)
Lake Macquarie Local Environmental Plan 2004 (Amendment No 42)—Sheets 1 and 2
Lake Macquarie Local Environmental Plan 2004 (Amendment No 45)
Lake Macquarie Local Environmental Plan 2004 (Amendment No 46)
Lake Macquarie Local Environmental Plan 2004 (Amendment No 50)—Sheet 3
Lake Macquarie Local Environmental Plan 2004 (Amendment No 59)—Sheet 1
Lake Macquarie Local Environmental Plan 2004 (Amendment No 61)—Sheet 3
State Environmental Planning Policy (Major Projects—North Cooranbong) Amendment 2008—North Cooranbong Urban Release Area Map
cl 62: Ins 2008 (152), Sch 1 [1]. Am 2008 (544), Sch 1 [1]; 2008 (556), Sch 1 [2]–[4]; 2009 (497), Sch 1 [1] [2]; 2009 (538), Sch 1 [1]; 2010 (4), Sch 1 [1]; 2010 (174), cl 4 (1); 2010 (288), Sch 1 [4]; 2010 (289), Sch 1 [1]; 2010 (376), cl 4 (1); 2010 (597), Sch 1 [1]; 2011 (593), Sch 1 [1]; 2013 (229), Sch 1 [2]; 2013 (588), Sch 1 [2]; 2014 (275), Sch 1 [2]; 2023 (554), Sch 2.16[1].
Part 8 Middle Camp site
Division 1 Preliminary
pt 8, div 1 (cll 63–66): Ins 2012 (147), Sch 1.
63 Application of Part
(1) This Part applies to the land identified on the Land Application Map, referred to in this Part as the Middle Camp site.
(2) No other provisions of this plan (other than clauses 4 and 6) apply to land within the Middle Camp site.
pt 8, div 1 (cll 63–66): Ins 2012 (147), Sch 1.
64 Interpretation
(1) In this Part—
Additional Permitted Uses Map means the Lake Macquarie Local Environmental Plan 2004—Middle Camp—Additional Permitted Uses Map.
Council means the Council of the City of Lake Macquarie.
Height of Buildings Map means the Lake Macquarie Local Environmental Plan 2004—Middle Camp—Height of Buildings Map.
heritage conservation area means an area of land of heritage significance shown on the Heritage Map as a heritage conservation area.
heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in clause 78.
Heritage Map means the Lake Macquarie Local Environmental Plan 2004—Middle Camp—Heritage Map.
Land Application Map means the Lake Macquarie Local Environmental Plan 2004—Middle Camp—Land Application Map.
Land Reservation Acquisition Map means the Lake Macquarie Local Environmental Plan 2004—Middle Camp—Land Reservation Acquisition Map.
Land Zoning Map means the Lake Macquarie Local Environmental Plan 2004—Middle Camp—Land Zoning Map.
(2) A word or expression used in this Part has the same meaning as it has in the standard instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 unless it is otherwise defined in this Part.
pt 8, div 1 (cll 63–66): Ins 2012 (147), Sch 1.
65 Maps
(1) A reference in this Part to a named map adopted by this Part is a reference to a map by that name—
(a) approved by the Minister when the map is adopted, and
(b) as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.
(2) Any 2 or more named maps may be combined into a single map. In that case, a reference in this Part to any such map is a reference to the relevant part or aspect of the single map.
(3) Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.
(4) For the purposes of this Part, a map may be in, and may be kept and made available in, electronic or paper form, or both.
pt 8, div 1 (cll 63–66): Ins 2012 (147), Sch 1.
66 Relationship with this Part and other environmental planning instruments
The only other environmental planning instruments that apply, according to their terms, to land within the Middle Camp site are all State environmental planning policies, except the following—
(a) State Environmental Planning Policy No 1—Development Standards,
(b) State Environmental Planning Policy No 71—Coastal Protection.
pt 8, div 1 (cll 63–66): Ins 2012 (147), Sch 1.
Division 2 Provisions applying to development in Middle Camp site
pt 8, div 2: Ins 2012 (147), Sch 1.
67 Land use zones
For the purposes of this Part, land within the Middle Camp site is in a zone as follows if the land is shown on the Land Zoning Map as being in that zone—
(a) Zone R2 Low Density Residential,
(b) Zone RE1 Public Recreation,
(c) Zone E1 National Parks and Nature Reserves,
(d) Zone E2 Environmental Conservation.
cl 67: Ins 2012 (147), Sch 1.
68 Objectives of land use zones to be taken into account
The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
cl 68: Ins 2012 (147), Sch 1.
69 Zone R2 Low Density Residential
(1) The objectives of Zone R2 Low Density Residential are as follows—
(a) to provide for the housing needs of the community within a low density residential environment,
(b) to enable other land uses that provide facilities or services to meet the day to day needs of residents,
(c) to encourage development that does not impact on the scenic, aesthetic and cultural heritage qualities of the built and natural environment of the Wallarah Peninsula,
(d) to encourage development that responds and is sympathetic to the surrounding built and natural environmental setting,
(e) to ensure that any non-residential development is compatible with the amenity of the area.
(2) Development for any of the following purposes is permitted without development consent on land within Zone R2 Low Density Residential—
home-based child care; home occupations.
(3) Development for any of the following purposes is permitted only with development consent on land within Zone R2 Low Density Residential—
bed and breakfast accommodation; boarding houses; building identification signs; business identification signs; child care centres; community facilities; dual occupancies; dwelling houses; educational establishments; environmental facilities; environmental protection works; group homes; health consulting rooms; home businesses; home industries; information and education facilities; neighbourhood shops; recreation areas; recreation facilities (outdoor); respite day care centres; roads; semi-detached dwellings; shop top housing.
(4) Except as otherwise provided by this Part, development is prohibited on land within Zone R2 Low Density Residential unless it is permitted by subclause (2) or (3).
cl 69: Ins 2012 (147), Sch 1.
70 Zone RE1 Public Recreation
(1) The objectives of Zone RE1 Public Recreation are as follows—
(a) to enable land to be used for open space or recreational purposes,
(b) to provide a range of recreational settings and activities and compatible land uses,
(c) to protect and enhance the natural environment for recreational purposes.
(2) Development for any of the following purposes is permitted without development consent on land within Zone RE1 Public Recreation—
environmental protection works; roads.
(3) Development for the following purposes is permitted only with development consent on land within Zone RE1 Public Recreation—
car parks; community facilities; environmental facilities; kiosks; markets; recreation areas; recreation facilities (indoor); recreation facilities (outdoor).
(4) Except as otherwise provided by this Part, development is prohibited on land within Zone RE1 Public Recreation unless it is permitted by subclause (2) or (3).
cl 70: Ins 2012 (147), Sch 1.
71 Zone E1 National Parks and Nature Reserves
(1) The objectives of Zone E1 National Parks and Nature Reserves are as follows—
(a) to enable the management and appropriate use of land that is reserved under the National Parks and Wildlife Act 1974,
(b) to enable uses authorised under the National Parks and Wildlife Act 1974,
(c) to identify land that is to be reserved under the National Parks and Wildlife Act 1974 and to protect the environmental significance of that land.
(2) Development for any of the following purposes is permitted without development consent on land within Zone E1 National Parks and Nature Reserves—
uses authorised under the National Parks and Wildlife Act 1974.
(3) Development for any of the following purposes is permitted only with development consent on land within Zone E1 National Parks and Nature Reserves—
nil.
(4) Except as otherwise provided by this Part, development is prohibited on land within Zone E1 National Parks and Nature Reserves unless it is permitted by subclause (2) or (3).
cl 71: Ins 2012 (147), Sch 1.
72 Zone E2 Environmental Conservation
(1) The objectives of Zone E2 Environmental Conservation are as follows—
(a) to protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values,
(b) to prevent development that could destroy, damage or otherwise have an adverse effect on those values.
(2) Development for any of the following purposes is permitted without development consent on land within Zone E2 Environmental Conservation—
environmental protection works.
(3) Development for any of the following purposes is permitted with development consent on land within Zone E2 Environmental Conservation—
environmental facilities; roads.
(4) Except as otherwise provided by this Part, development for the following purposes is prohibited on land within Zone E2 Environmental Conservation—
business premises; hotel or motel accommodation; industries; multi dwelling housing; recreation facilities (major); residential flat buildings; retail premises; warehouse or distribution centres; any other development not specified in subclause (2) or (3).
cl 72: Ins 2012 (147), Sch 1.
73 Subdivision—consent requirements
Land within the Middle Camp site may be subdivided, but only with development consent.
cl 73: Ins 2012 (147), Sch 1.
74 Height of buildings
(1) The objectives of this clause are as follows—
(a) to ensure that development has an appropriate scale and height in relation to its visual, landscape and heritage setting,
(b) to ensure that building heights do not adversely impact on the amenity of residents and people using the public domain.
(2) The height of a building on land within the Middle Camp site is not to exceed the maximum height shown for the land on the Height of Buildings Map.
cl 74: Ins 2012 (147), Sch 1.
75 Neighbourhood shops in Zone R2 Low Density Residential
(1) The objective of this clause is to set a maximum retail floor area for neighbourhood shops in Zone R2 Low Density Residential.
(2) The retail floor area of a neighbourhood shop must not exceed 125 square metres.
cl 75: Ins 2012 (147), Sch 1.
76 Exceptions to development standards
(1) The objectives of this clause are—
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, and
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant for development consent has demonstrated that—
(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
Note—
The Environmental Planning and Assessment Regulation 2021 requires the development application to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).
(4) The consent authority must keep a record of its assessment carried out under subclause (3).
(5), (6) (Repealed)
(7) This clause does not allow development consent to be granted for development that would contravene any of the following—
(a) a development standard for complying development,
(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated.
cl 76: Ins 2012 (147), Sch 1. Am 2023 (524), Sch 1.1[1].
77 Development within the coastal zone
(1) The objectives of this clause are as follows—
(a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,
(b) to implement the principles in the NSW Coastal Policy, and in particular to—
(i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and
(ii) protect and preserve the natural, cultural, recreational and economic attributes of the NSW coast, and
(iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and
(iv) recognise and accommodate coastal processes and climate change, and
(v) protect amenity and scenic quality, and
(vi) protect and preserve rock platforms, beach environments and beach amenity, and
(vii) protect and preserve native coastal vegetation, and
(viii) protect and preserve the marine environment, and
(ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and
(x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and
(xi) protect Aboriginal cultural places, values and customs, and
(xii) protect and preserve items of heritage, archaeological or historical significance.
(2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered—
(a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to—
(i) maintaining existing public access and, where possible, improving that access, and
(ii) identifying opportunities for new public access, and
(b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account—
(i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and
(ii) the location, and
(iii) the bulk, scale, size and overall built form design of any building or work involved, and
(c) the impact of the proposed development on the amenity of the coastal foreshore including—
(i) any significant overshadowing of the coastal foreshore, and
(ii) any loss of views from a public place to the coastal foreshore, and
(d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and
(e) how biodiversity and ecosystems, including—
(i) native coastal vegetation and existing wildlife corridors, and
(ii) rock platforms, and
(iii) water quality of coastal waterbodies, and
(iv) native fauna and native flora, and their habitats,
can be conserved, and
(f) the cumulative impacts of the proposed development and other development on the coastal catchment.
(3) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that—
(a) the proposed development will not impede or diminish the physical, land-based right of access of the public, where practicable, to or along the coastal foreshore, and
(b) if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and
(c) the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and
(d) the proposed development will not—
(i) be significantly affected by coastal hazards, or
(ii) have a significant impact on coastal hazards, or
(iii) increase the risk of coastal hazards in relation to any other land.
cl 77: Ins 2012 (147), Sch 1.
78 Heritage conservation
Note—
Heritage items are listed and described in the table to this clause. The Heritage Map may also show the location of a heritage item.
(1) Objectives The objectives of this clause are as follows—
(a) to conserve the environmental heritage of the Middle Camp site,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
(c) to conserve archaeological sites,
(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
(2) Requirement for consent Development consent is required for any of the following—
(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—
(i) a heritage item,
(ii) an Aboriginal object,
(iii) a building, work, relic or tree within a heritage conservation area,
(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in the Table to this clause in relation to the item,
(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,
(d) disturbing or excavating an Aboriginal place of heritage significance,
(e) erecting a building on land—
(i) on which a heritage item is located or that is within a heritage conservation area, or
(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,
(f) subdividing land—
(i) on which a heritage item is located or that is within a heritage conservation area, or
(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.
(3) When consent not required However, development consent under this clause is not required if—
(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development—
(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and
(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or
(b) the development is in a cemetery or burial ground and the proposed development—
(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and
(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or
(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or
(d) the development is exempt development under a State environmental planning policy.
(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
(5) Heritage assessment The consent authority may, before granting consent to any development—
(a) on land on which a heritage item is located, or
(b) on land that is within a heritage conservation area, or
(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),
require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
(6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.
(7) Archaeological sites The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies)—
(a) notify the Heritage Council of its intention to grant consent, and
(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.
(8) Aboriginal places of heritage significance The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance—
(a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and
(b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent.
(9) Demolition of nominated State heritage items The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item—
(a) notify the Heritage Council about the application, and
(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.
(10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Part, if the consent authority is satisfied that—
(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and
(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and
(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and
(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and
(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
(11) For the purposes of the definition of heritage item in clause 64 (1), the location and nature of a heritage item is specified in the Table to this clause.
Table—heritage items
| Item number | Item description | Address | Property description | Significance | | 1 | Archaeological remains of house and associated structures | Colliery Road, Middle Camp | Lot 223, DP 1102989 | Local | | 2 | Workshop building | Colliery Road, Middle Camp | Lot 223, DP 1102989 | Local | | 3 | House (former mine engineer’s residence) | Colliery Road, Middle Camp | Lot 223, DP 1102989 | Local | | 4 | House (former electrical engineer’s residence) (CH-38) | Colliery Road, Middle Camp | Lot 223, DP 1102989 | Local | | 5 | Cottage (CH-30) | Colliery Road, Middle Camp | Lot 223, DP 1102989 | Local | | 6 | Cottage (CH-31) | Colliery Road, Middle Camp | Lot 223, DP 1102989 | Local |
cl 78: Ins 2012 (147), Sch 1.
79 (Repealed)
80 Public utility infrastructure
(1) Development consent must not be granted for development on land within the Middle Camp site unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.
(2) This clause does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure.
(3) In this clause, public utility infrastructure includes infrastructure for any of the following—
(a) the supply of water,
(b) the supply of electricity and gas,
(c) the disposal and management of sewage.
cl 80: Ins 2012 (147), Sch 1.
81 Development control plan
(1) The objective of this clause is to ensure that development on land within the Middle Camp site occurs in a logical and cost-effective manner, in accordance with a staging plan and only after a development control plan that includes specific controls has been prepared for the land.
(2) Development consent must not be granted for development on land within the Middle Camp site unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land.
(3) The development control plan must provide for all of the following—
(a) a staging plan for the timely and efficient release of urban land, making provision for necessary infrastructure and sequencing,
(b) an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists,
(c) an overall landscaping strategy for the protection and enhancement of riparian areas and remnant vegetation, including visually prominent locations, and detailed landscaping requirements for both the public and private domain,
(d) a network of passive and active recreational areas,
(e) stormwater and water quality management controls,
(f) amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected,
(g) detailed urban design controls for significant development sites,
(h) measures to encourage higher density living around transport, open space and service nodes,
(i) measures to accommodate and control appropriate neighbourhood commercial and retail uses,
(j) suitably located public facilities and services, including provision for appropriate traffic management facilities and parking.
(4) Subclause (2) does not apply to any of the following development—
(a) a subdivision for the purpose of a realignment of boundaries that does not create additional lots,
(b) a subdivision of land if any of the lots proposed to be created is to be reserved or dedicated for public open space, public roads or any other public or environmental protection purpose,
(c) a subdivision of land in a zone in which the erection of structures is prohibited,
(d) proposed development on land that is of a minor nature only, if the consent authority is of the opinion that the carrying out of the proposed development would be consistent with the objectives of the zone in which the land is situated.
cl 81: Ins 2012 (147), Sch 1.
82 Infrastructure development and use of existing buildings of the Crown
(1) This Part does not restrict or prohibit, or enable the restriction or prohibition of, the carrying out of any development, by or on behalf of a public authority, that is permitted to be carried out with or without development consent, or that is exempt development, under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2.
(2) This Part does not restrict or prohibit, or enable the restriction or prohibition of, the use of existing buildings of the Crown by the Crown.
cl 82: Ins 2012 (147), Sch 1. Am 2022 (72), Sch 1.25[1].
83 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 1991 requires the authority to acquire the land.
(2) The authority of the State that will be the relevant authority to acquire land to which this clause applies, 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).
| Type of land shown on Land Reservation Acquisition Map | Authority of the State | | Zone RE1 Public Recreation and marked “Local open space” | The Council | | Zone E1 National Parks and Nature Reserves and marked “National Park” | Minister administering the National Parks and Wildlife Act 1974 |
Note—
If land, other than land specified in the Table to subclause (2), is required to be acquired under the owner-initiated acquisition provisions, the Minister for Planning and Infrastructure is required to take action to enable the designation of the acquiring authority under this Part. Pending the designation of the acquiring authority for that land, the acquiring authority is to be the authority determined by order of the Minister for Planning and Infrastructure (see section 21 of the Land Acquisition (Just Terms Compensation) Act 1991).
(3) Development on land acquired by an authority of the State under the owner-initiated acquisition provisions may, before it is used for the purpose for which it is reserved, be carried out, with development consent, for any purpose.
cl 83: Ins 2012 (147), Sch 1.
84 Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land within the Middle Camp site to be carried out in accordance with this Part or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
(2) This clause does not apply—
(a) to a covenant imposed by the Council or that the Council requires to be imposed, or
(b) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or
(c) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or
(d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or
(e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or
(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or
(g) to any planning agreement within the meaning of Division 6 of Part 4 of the Act.
(3) This clause does not affect the rights or interests of any public authority under any registered instrument.
(4) Under section 28 of the Act, the Governor, before the making of this clause, approved of subclauses (1)–(3).
cl 84: Ins 2012 (147), Sch 1. Am 2019 (621), Sch 2.11[2].
85 Subdivision and permitted dwelling houses on certain land in Zone E2
(1) This clause applies to the land shown edged heavy black on the Additional Permitted Uses Map.
(2) Development consent must not be granted to the subdivision of land to which this clause applies unless it is for the purpose of excising a lot for a dwelling house that existed at the commencement of this Part (an existing dwelling house) or for any dwelling house that replaces such a dwelling.
(3) Development for the purposes of a dwelling house on land to which this plan applies is permitted with development consent if—
(a) the dwelling house is to replace an existing dwelling house, and
(b) the building envelope of the new dwelling house is no larger than that of the existing dwelling house.
(4) This clause has effect despite any other provision of this Part.
cl 85: Ins 2012 (147), Sch 1.
Part 9 Nords Wharf site
86 Application of Part
(1) This Part applies to the land identified on the Land Application Map, referred to in this Part as the Nords Wharf site.
(2) No other provision of this Plan (other than clauses 4 and 6 and Part 6) applies to land within the Nords Wharf site.
pt 9, div 1 (cll 86–89): Ins 2012 (148), Sch 1.
87 Interpretation
(1) In this Part—
Council means the Council of the City of Lake Macquarie.
Height of Buildings Map means the Lake Macquarie Local Environmental Plan 2004—Nords Wharf—Height of Buildings Map.
Land Application Map means the Lake Macquarie Local Environmental Plan 2004—Nords Wharf—Land Application Map.
Land Reservation Acquisition Map means the Lake Macquarie Local Environmental Plan 2004—Nords Wharf—Land Reservation Acquisition Map.
Land Zoning Map means the Lake Macquarie Local Environmental Plan 2004—Nords Wharf—Land Zoning Map.
(2) A word or expression used in this Part has the same meaning as it has in the standard instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 unless it is otherwise defined in this Part.
pt 9, div 1 (cll 86–89): Ins 2012 (148), Sch 1.
88 Maps
(1) A reference in this Part to a named map adopted by this Part is a reference to a map by that name—
(a) approved by the Minister when the map is adopted, and
(b) as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.
(2) Any 2 or more named maps may be combined into a single map. In that case, a reference in this Part to any such map is a reference to the relevant part or aspect of the single map.
(3) Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.
(4) For the purposes of this Part, a map may be in, and may be kept and made available in, electronic or paper form, or both.
pt 9, div 1 (cll 86–89): Ins 2012 (148), Sch 1.
89 Relationship with this Plan and other environmental planning instruments
The only other environmental planning instruments that apply, according to their terms, to land within the Nords Wharf site are all State environmental planning policies, except the following—
(a) State Environmental Planning Policy No 1—Development Standards,
(b) State Environmental Planning Policy No 71—Coastal Protection.
pt 9, div 1 (cll 86–89): Ins 2012 (148), Sch 1.
90 Land use zones
For the purposes of this Part, land within the Nords Wharf site is in a zone as follows if the land is shown on the Land Zoning Map as being in that zone—
(a) Zone R2 Low Density Residential,
(b) Zone E1 National Parks and Nature Reserves,
(c) Zone E2 Environmental Conservation.
cl 90: Ins 2012 (148), Sch 1.
91 Objectives of land use zones to be taken into account
The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
cl 91: Ins 2012 (148), Sch 1.
92 Zone R2 Low Density Residential
(1) The objectives of Zone R2 Low Density Residential are as follows—
(a) to provide for the housing needs of the community within a low density residential environment,
(b) to enable other land uses that provide facilities or services to meet the day to day needs of residents,
(c) to encourage development that does not impact on the scenic, aesthetic and cultural heritage qualities of the built and natural environment of the Wallarah Peninsula,
(d) to encourage development that responds and is sympathetic to the surrounding built and natural environmental setting,
(e) to ensure that any non-residential development is compatible with the amenity of the area.
(2) Development for any of the following purposes is permitted without development consent on land within Zone R2 Low Density Residential—
home-based child care; home occupations.
(3) Development for any of the following purposes is permitted only with development consent on land within Zone R2 Low Density Residential—
bed and breakfast accommodation; boarding houses; building identification signs; business identification signs; child care centres; community facilities; dual occupancies; dwelling houses; educational establishments; environmental facilities; environmental protection works; group homes; health consulting rooms; home businesses; home industries; information and education facilities; neighbourhood shops; recreation areas; recreation facilities (outdoor); respite day care centres; roads; semi-detached dwellings; shop top housing.
(4) Except as otherwise provided by this Part, development is prohibited on land within Zone R2 Low Density Residential unless it is permitted by subclause (2) or (3).
cl 92: Ins 2012 (148), Sch 1.
93 Zone E1 National Parks and Nature Reserves
(1) The objectives of Zone E1 National Parks and Nature Reserves are as follows—
(a) to enable the management and appropriate use of land that is reserved under the National Parks and Wildlife Act 1974,
(b) to enable uses authorised under the National Parks and Wildlife Act 1974,
(c) to identify land that is to be reserved under the National Parks and Wildlife Act 1974 and to protect the environmental significance of that land.
(2) Development for any of the following purposes is permitted without consent on land within Zone E1 National Parks and Nature Reserves—
uses authorised under the National Parks and Wildlife Act 1974.
(3) Development for any of the following purposes is permitted only with development consent on land within Zone E1 National Parks and Nature Reserves—
nil.
(4) Except as otherwise provided by this Part, development is prohibited on land within Zone E1 National Parks and Nature Reserves unless it is permitted by subclause (2) or (3).
cl 93: Ins 2012 (148), Sch 1.
94 Zone E2 Environmental Conservation
(1) The objectives of Zone E2 Environmental Conservation are as follows—
(a) to protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values,
(b) to prevent development that could destroy, damage or otherwise have an adverse effect on those values.
(2) Development for any of the following purposes is permitted without consent on land within Zone E2 Environmental Conservation—
environmental protection works.
(3) Development for any of the following purposes is permitted with consent on land within Zone E2 Environmental Conservation—
environmental facilities; roads.
(4) Except as otherwise provided by this Part, development for the following purposes is prohibited on land within Zone E2 Environmental Conservation—
business premises; hotel or motel accommodation; industries; multi dwelling housing; recreation facilities (major); residential flat buildings; retail premises; warehouse or distribution centres; any other development not specified in subclause (2) or (3).
cl 94: Ins 2012 (148), Sch 1.
95 Subdivision—consent requirements
Land within the Nords Wharf site may be subdivided, but only with development consent.
cl 95: Ins 2012 (148), Sch 1.
96 Height of buildings
(1) The objectives of this clause are as follows—
(a) to ensure that development has an appropriate scale and height in relation to its visual, landscape and heritage setting,
(b) to ensure that building heights do not adversely impact on the amenity of residents and people using the public domain.
(2) The height of a building on land within the Nords Wharf site is not to exceed the maximum height shown for the land on the Height of Buildings Map.
cl 96: Ins 2012 (148), Sch 1.
97 Neighbourhood shops in Zone R2 Low Density Residential
(1) The objective of this clause is to set a maximum retail floor area for neighbourhood shops in Zone R2 Low Density Residential.
(2) The retail floor area of a neighbourhood shop must not exceed 125 square metres.
cl 97: Ins 2012 (148), Sch 1.
98 Exceptions to development standards
(1) The objectives of this clause are—
(a) to provide an appropriate degree of flexibility in applying certain standards to particular development, and
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant for development consent has demonstrated that—
(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
Note—
The Environmental Planning and Assessment Regulation 2021 requires the development application to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).
(4) The consent authority must keep a record of its assessment carried out under subclause (3).
(5), (6) (Repealed)
(7) This clause does not allow development consent to be granted for development that would contravene any of the following—
(a) a development standard for complying development,
(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated.
cl 98: Ins 2012 (148), Sch 1. Am 2023 (524), Sch 1.1[1].
99 Development within the coastal zone
(1) The objectives of this clause are as follows—
(a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,
(b) to implement the principles in the NSW Coastal Policy, and in particular to—
(i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and
(ii) protect and preserve the natural, cultural, recreational and economic attributes of the NSW coast, and
(iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and
(iv) recognise and accommodate coastal processes and climate change, and
(v) protect amenity and scenic quality, and
(vi) protect and preserve rock platforms, beach environments and beach amenity, and
(vii) protect and preserve native coastal vegetation, and
(viii) protect and preserve the marine environment, and
(ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and
(x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and
(xi) protect Aboriginal cultural places, values and customs, and
(xii) protect and preserve items of heritage, archaeological or historical significance.
(2) Development consent must not be granted to development on land within the Nords Wharf site that is wholly or partly within the coastal zone unless the consent authority has considered—
(a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to—
(i) maintaining existing public access and, where possible, improving that access, and
(ii) identifying opportunities for new public access, and
(b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account—
(i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and
(ii) the location, and
(iii) the bulk, scale, size and overall built form design of any building or work involved, and
(c) the impact of the proposed development on the amenity of the coastal foreshore including—
(i) any significant overshadowing of the coastal foreshore, and
(ii) any loss of views from a public place to the coastal foreshore, and
(d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and
(e) how biodiversity and ecosystems, including—
(i) native coastal vegetation and existing wildlife corridors, and
(ii) rock platforms, and
(iii) water quality of coastal waterbodies, and
(iv) native fauna and native flora, and their habitats,
can be conserved, and
(f) the cumulative impacts of the proposed development and other development on the coastal catchment.
(3) Development consent must not be granted to development on land within the Nords Wharf site that is wholly or partly within the coastal zone unless the consent authority is satisfied that—
(a) the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and
(b) if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and
(c) the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and
(d) the proposed development will not—
(i) be significantly affected by coastal hazards, or
(ii) have a significant impact on coastal hazards, or
(iii) increase the risk of coastal hazards in relation to any other land.
cl 99: Ins 2012 (148), Sch 1.
100 (Repealed)
101 Public utility infrastructure
(1) Development consent must not be granted for development on land within the Nords Wharf site unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.
(2) This clause does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure.
(3) In this clause, public utility infrastructure includes infrastructure for any of the following—
(a) the supply of water,
(b) the supply of electricity and gas,
(c) the disposal and management of sewage.
cl 101: Ins 2012 (148), Sch 1.
102 Development control plan
(1) The objective of this clause is to ensure that development on land within the Nords Wharf site occurs in a logical and cost-effective manner, in accordance with a staging plan and only after a development control plan that includes specific controls has been prepared for the land.
(2) Development consent must not be granted for development on land within the Nords Wharf site unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land.
(3) The development control plan must provide for all of the following—
(a) a staging plan for the timely and efficient release of urban land, making provision for necessary infrastructure and sequencing,
(b) an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists,
(c) an overall landscaping strategy for the protection and enhancement of riparian areas and remnant vegetation, including visually prominent locations, and detailed landscaping requirements for both the public and private domain,
(d) a network of passive and active recreational areas,
(e) stormwater and water quality management controls,
(f) amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected,
(g) detailed urban design controls for significant development sites,
(h) measures to encourage higher density living around transport, open space and service nodes,
(i) measures to accommodate and control appropriate neighbourhood commercial and retail uses,
(j) suitably located public facilities and services, including provision for appropriate traffic management facilities and parking.
(4) Subclause (2) does not apply to any of the following development—
(a) a subdivision for the purpose of a realignment of boundaries that does not create additional lots,
(b) a subdivision of land if any of the lots proposed to be created is to be reserved or dedicated for public open space, public roads or any other public or environmental protection purpose,
(c) a subdivision of land in a zone in which the erection of structures is prohibited,
(d) proposed development on land that is of a minor nature only, if the consent authority is of the opinion that the carrying out of the proposed development would be consistent with the objectives of the zone in which the land is situated.
cl 102: Ins 2012 (148), Sch 1.
103 Infrastructure development and the use of existing buildings of the Crown
(1) This Part does not restrict or prohibit, or enable the restriction or prohibition of, the carrying out of any development, by or on behalf of a public authority, that is permitted to be carried out with or without development consent, or that is exempt development, under State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2.
(2) This Part does not restrict or prohibit, or enable the restriction or prohibition of, the use of existing buildings of the Crown by the Crown.
cl 103: Ins 2012 (148), Sch 1. Am 2022 (72), Sch 1.25[1].
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
1 Name of plan
This plan is Lake Macquarie Local Environmental Plan 2004.
2 Land to which plan applies
(1) This plan applies to all land within the local government area of Lake Macquarie City, except as provided by subclause (2).
(2) This plan does not apply to land to which Lake Macquarie Local Environmental Plan 2000—North Wallarah Peninsula applies or to any land shown as “Deferred” on the map.
(3) (Repealed)
cl 2: Am 2008 (406), Sch 2.2; 2010 (620), Sch 1.2; 2014 (220), Sch 1 [1].
3 Objective of plan
The objective of this plan is to achieve development of land to which this plan applies that is in accordance with the principles of ecologically sustainable development by—
(a) promoting balanced development of that land, and
(b) implementing the Lifestyle 2020 Strategy adopted by the Council on 27 March 2000.
4 Consent authority
The Council is the consent authority for the purposes of this plan, subject to the Act.
5 Relationship to other environmental planning instruments
(1) All local environmental plans (including Lake Macquarie Local Environmental Plan 1984) that applied to land to which this plan applies immediately before the appointed day are repealed.
(2) This plan amends State Environmental Planning Policy No 4—Development Without Consent and Miscellaneous Exempt and Complying Development by inserting the following words in alphabetical order in Schedule 2 (Land excepted from clauses 6–10)—
It requires site-specific planning controls for large or sensitive areas: the instrument contains multiple bespoke Parts (for example Middle Camp—Part 8, Nords Wharf—Part 9, Minmi–Newcastle Link Road—Part 10, South Wallarah Peninsula—Part 11). These Parts adopt their own maps, zone lists, height caps, additional permitted uses and preconditions such as mandatory Development Control Plans (clauses 63–66; 81; 86–89; 106–110; 132–135; 74; 96; 119; 144).
The plan lists heritage items, potential archaeological sites, natural heritage items and Aboriginal heritage places in Schedules 4–6 and sets mandatory heritage assessment and consultation requirements for developments that affect them (clauses 47–52; Schedules 4–6).
It contains acquisition and owner‑initiation provisions allowing landowners to request acquisition of some public‑purpose land and specifying acquiring authorities (clauses 55, 57, 59, and Parts of Schedules 3, 83, 104, 122, 153).
The plan also: suspends private covenants to the extent necessary for allowable development (clause 20 and equivalents in site Parts 84, 105, 130, 154), makes special provision for development by public authorities (Schedule 10), and prescribes many map‑based controls (zoning maps, height maps, additional permitted uses maps referred to in many site Parts).
Who this affects
Property owners and prospective buyers in Lake Macquarie: zoning, permitted uses and subdivision minimums determine what they can build and when (clause 15 table; Schedule 2 subdivision standards).
Developers and investors: the plan sets what is consentable, prescribes preconditions (DCPs, infrastructure proof) and records site‑specific opportunities (Schedule 7 additional permitted uses) and constraints (heritage, bushland, coastal zone rules).
The Council: acts as consent authority and must apply the plan’s tests, prepare or require DCPs, and potentially acquire land (clauses 4, 16, 81, 55).
State agencies and utility providers: the plan cross‑references State environmental planning policies and other Acts, and provides carve‑outs for Crown/utility works and for State acquisition (clause 66, Schedule 10, cl 61 and related acquisition items).
Aboriginal communities and heritage stakeholders: the plan requires notification and consultation where development may affect Aboriginal sites (clause 50; Schedule 6).
Neighbours and local community: many clauses require consideration of amenity, views, public access to foreshore/coast (clauses 22–23; 77; 99; 147) and impose notification requirements in some heritage matters (clause 48).
Why it matters (practical consequences and the instruments’ own purpose claims)
The plan’s stated objective is to achieve development consistent with ecologically sustainable development and to implement the Lifestyle 2020 Strategy (clause 3). Mechanically, it does this by: zoning land, listing permitted/prohibited uses, imposing standards for subdivision and building height, requiring infrastructure proof and DCPs for large sites, and adding environmental/heritage tests that must be satisfied before consent.
Costs and who pays: private landowners and developers bear most direct costs—compliance (heritage and environmental studies, DCP requirements, infrastructure contributions), possible lot‑size limits and staged release conditions. The Council may bear costs when acquiring land under owner‑initiation rules (clause 55) or when preparing master plans/DCPs required as preconditions for consent (clauses 81, 102, 128, 156).
Incentives and trade‑offs: the plan increases certainty about permitted uses in many locations (supporting investment) but also raises the up‑front compliance cost and complexity for significant development (heritage statements, flood/bushfire assessments, acid sulfate soils management plans—clauses 47, 32, 33, 35). Site‑specific additional permitted uses (Schedule 7) concentrate benefits on certain parcels; conversely, broad environmental and heritage protections restrict options on many holdings.
Opportunity costs and substitution effects: developers may shift activity to parcels with fewer constraints or where Schedule 7 permits more intensive uses. Zoning and minimum lot sizes limit subdivision‑led densification in many conservation and rural zones (Schedule 2; Parts 2, 14–16), creating scarcity in developable land.
Bureaucratic discretion and implementation risk: the plan relies heavily on Council judgment (e.g. clauses 16, 17, 21, 31, and many site DCP preconditions). That creates case‑by‑case discretion and requires Council capacity to prepare and apply detailed DCPs (clauses 81, 102, 128, 156). Where DCPs are required before consent, delays preparing or adopting those DCPs can stall development.
Compliance burden and record‑keeping: the plan requires consent authorities to keep records of decisions where standards are varied (clause 21(4)), to consider numerous technical plans (erosion and sediment control, acid sulfate soils management plans—clauses 31, 35), and to notify Aboriginal groups in certain cases (clause 50). These obligations increase administrative workload for applicants and Council.
Effects on private choice and contract freedom: the plan limits what purchasers and owners can do (e.g. suspension of private covenants applies to allow plan‑permitted development—clause 20 and cl 84), and owner‑initiated acquisition provisions allow land to be taken in particular circumstances.
Competition and prices: by imposing land‑use restrictions, minimum lot sizes, heritage constraints and staged release rules, the plan can raise barriers to entry for some projects and reduce the supply of developable land in constrained zones—this can influence land prices and the economics of housing and commercial development.
Notable recent additions and site‑specific devices (examples and citations)
New specific protections and prohibitions have been added in recent amendments and site Parts: protection of public bushland (clause 21C), prohibition on canal estate development (clause 21D), protections for live music at licensed premises (clause 21B), and a specific clause for conversion of monitored fire alarm systems (clause 21A). These are examples of topic‑specific rules layered onto the LEP.
Several large release or redevelopment sites are regulated by bespoke Parts that override general provisions and require maps, DCPs and infrastructure proof before development can proceed (Middle Camp Part 8—clauses 63–66 and 81; Nords Wharf Part 9—clauses 86–89 and 102; Minmi–Newcastle Part 10—clauses 106–110 and 128; South Wallarah Peninsula Part 11—clauses 132–135 and 144). These Parts contain their own zoning, height maps and additional permitted uses.
Primary legal levers to watch (by clause reference)
Bottom line
Functionally, this LEP is a comprehensive zoning and development control instrument for Lake Macquarie that combines broad city‑wide rules with many site‑specific parts and schedules. It balances enabling development (including some flexible exceptions and additional permitted uses) with detailed environmental, heritage and infrastructure tests that materially affect cost, timing and the scope of private development. The instrument creates both certainty about permitted uses in many places and significant procedural and substantive hurdles for larger and environmentally or culturally sensitive projects (see clauses 16, 17, 21, Part 6 and the site Parts).
Lake Macquarie City local government area
(3) The Hunter Regional Environmental Plan 1989 (Heritage) does not apply to land to which this plan applies.
6 Notes
Notes in this plan are provided for guidance and do not form part of this plan.
cl 6: Subst 2010 (218), Sch 1 [1].
7 Definitions
(1) Words defined in the Dictionary at the end of this plan have the meanings set out in the Dictionary.
(1A) Words and expressions used in this plan in relation to development on land in Zone B4 Mixed Use Zone have the same meaning as they have in the standard instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006 (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011).
(2) In this plan, a reference to—
(a) a map, is a reference to a map held at the office of the Council, and
(b) land within a zone, is a reference to land shown on the map as being within that zone.
cl 7: Am 2010 (288), Sch 1 [1]; 2011 (103), Sch 1.3.
8 Exempt development
Development meeting the criteria for exempt development in Schedule 1, being development of minimal environmental impact, is exempt development for the purposes of the Act.
9 Complying development
Local development that complies with the standards and any other requirements specified for the development in Lake Macquarie Development Control Plan No 2—Complying Development, as approved by the Council on 22 March 2004, is complying development for the purposes of the Act.
Note—
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 specifies complying development and the complying development conditions for that development under that Policy. That Policy has State-wide application.
cl 9: Am 2007 (53), Sch 1 [1]; 2010 (218), Sch 1 [2].
10 Development by public authorities
Despite other provisions of this plan, the following are allowed on land to which this plan applies without consent—
(a) the use of existing buildings of the Crown by the Crown, and
(b) activities specified in Schedule 10.
11 Determination of pending development applications
(1) Any development application lodged but not finally determined prior to the commencement of this plan is to be determined as if this plan had been exhibited under the Act but had not been made.
(2) Development control plans as in force immediately before the commencement of this plan are to be taken into consideration by the consent authority in determining any such development application.
(3) A development application lodged with the Council, but not finally determined, before the commencement of Lake Macquarie Local Environmental Plan 2004 (Amendment No 28) is to be determined as if that plan had been exhibited under the Act but had not been made.
(4) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Exceptions to Development Standards) 2023 must be determined as if that policy had not commenced.
(5) A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Flood Planning) 2023 must be determined as if that policy had not commenced.
cl 11: Am 2010 (218), Sch 1 [3]; 2023 (524), Sch 1.1[2]; 2023 (609), Sch 2.10[1].
Part 2 Lifestyle 2020 Strategy—vision, values and aims
12 Vision
The vision for land to which this plan applies is described in the Lifestyle 2020 Strategy, which is available from the office of the Council.
13 Values
The 4 core values of that strategy are sustainability, equity, efficiency and liveability.
14 Aims
The aims of the Lifestyle 2020 Strategy are to—
(a) provide the community with realistic expectations about the future development patterns for land in Lake Macquarie City, while retaining flexibility for land use decision making in the longer term, and
(b) reinforce and strengthen centres so that a wide range of commercial and community services may be provided in a timely and accessible manner, and
(c) provide local employment opportunities for residents and promote economic development consistent with the City’s natural, locational and community resources, and
(d) guide the development of urban communities that are compact, distinct and diverse and include a range of housing types and activities, and
(e) achieve a strong sense of positive community identity, through the development of local communities that are safe and liveable and offer a diversity of uses, economic opportunities and ready access to services, and
(f) develop an attractive urban setting for the City which reflects its physical and natural environment, and visual character, and
(g) manage the City’s natural environment so that its ecological functions and biological diversity are conserved and enhanced, and contribute to the City’s overall well being, and
(h) manage the City’s heritage and economic resources in a way that protects the value of these resources and enhances the City’s character, and
(i) integrate land use with the efficient provision of public and private movement systems, and
(j) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts.
cl 14: Am 2020 (724), Sch 1.7.
Part 3 General controls for land within zones
15 General controls for land within zones
Except as provided otherwise by this plan, the following Table shows for land within each zone—
(a) the development that may be carried out in the zone without development consent under the heading “Without development consent”, and
(b) the development that may be carried out in the zone only with development consent under the heading “Only with development consent”, and
(c) the development that is prohibited in the zone under the heading “Prohibited”.
Land use table
Zone 1 (1) Rural (Production) Zone
Zone 1 (2) Rural (Living) Zone
Zone 2 (1) Residential Zone
Zone 2 (2) Residential (Urban Living) Zone
Zone 3 (1) Urban Centre (Core) Zone
Zone 3 (2) Urban Centre (Support) Zone
Zone B4 Mixed Use Zone
Zone 4 (1) Industrial (Core) Zone
Zone 4 (2) Industrial (General) Zone
Zone 4 (3) Industrial (Urban Services) Zone
Zone 5 Infrastructure Zone
Zone 6 (1) Open Space Zone
Zone 6 (2) Tourism and Recreation Zone
Zone 7 (1) Conservation (Primary) Zone
Zone 7 (2) Conservation (Secondary) Zone
Zone 7 (3) Environmental (General) Zone
Zone 7 (4) Environmental (Coastline) Zone
Zone 7 (5) Environmental (Living) Zone
Zone 8 National Park Zone
Zone 9 Natural Resources Zone
Zone 10 Investigation Zone
Zone 11 Lakes and Waterways Zone
cl 15, table: Am 2006 No 58, Sch 2.26 [1]; 2007 (53), Sch 1 [2]–[16]; 2010 (218), Sch 1 [4]–[14]; 2010 (288), Sch 1 [2]; 2013 (537), Sch 1 [1]; 2014 No 88, Sch 2.31 [1].
1 Objectives of zone
The objectives of this zone are to—
(a) provide for economic and employment-generating agricultural activities, and
(b) provide for a range of compatible land uses that maintain and enhance the rural environment of the locality, and
(c) ensure development is carried out in a manner that improves the quality of the environment, including quality of design, and is within the servicing capacity of the locality, and
(d) encourage development and management practices that are sustainable, and
(e) encourage the development of good quality agricultural land for agriculture (other than intensive agriculture) to the greatest extent possible, and
(f) encourage the development of low quality agricultural land for intensive agriculture, and
(g) provide for sustainable forestry practices, and
(h) avoid land use conflict by restricting or prohibiting development that has the potential to negatively affect the sustainability of existing agriculture, and
(i) provide for sustainable water cycle management.
2 Without development consent
Exempt development as provided in Schedule 1.
Development for the purpose of agriculture (other than intensive agriculture).
3 Only with development consent
Development for the purpose of—
airline terminals
airports
animal establishments
aquaculture
bed and breakfast accommodation
bulk stores
cemeteries and crematoriums
drainage
dual occupancies—attached
dwelling houses
earthworks
eco-tourism facilities
educational establishments
emergency services facilities
energy generation works
environmental facilities
extractive industries
farm stay accommodation
forestry
helipads
heliports
home businesses
home industries
intensive agriculture
mines
retail plant nurseries
roads
roadside stalls
rural industries
sawmills
signs
stormwater management facilities
sustainable generating works
telecommunications facilities
transport terminals
utility installations
veterinary hospitals
wholesale plant nurseries
4 Prohibited
Development not listed in item 2 or 3.
1 Objectives of zone
The objectives of this zone are to—
(a) provide for the enjoyment of a rural lifestyle and the operation of small-scale rural and tourism activities, and
(b) provide for a range of compatible land uses that maintain the rural environment, and
(c) ensure development is carried out in a manner that improves the quality of the environment, and is within the servicing capacity of the area, and
(d) retain and enhance the rural character of land, and
(e) allow for the appropriate development of land presently within this zone so as to limit the need to rezone any more land to this zone, and
(f) avoid land use conflict by restricting or prohibiting development that has the potential to negatively affect the sustainability of existing agriculture, and
(g) provide for sustainable water cycle management.
2 Without development consent
Exempt development as provided in Schedule 1.
3 Only with development consent
Development for the purpose of—
agriculture (other than intensive agriculture)
bed and breakfast accommodation
drainage
dual occupancies—attached
dwelling houses
earthworks
eco-tourism facilities
educational establishments
emergency services facilities
environmental facilities
home businesses
home industries
retail plant nurseries
roads
roadside stalls
signs
stormwater management facilities
telecommunications facilities
utility installations
wholesale plant nurseries
4 Prohibited
Development not listed in item 2 or 3.
1 Objectives of zone
The objectives of this zone are to—
(a) permit development of neighbourhoods of low-density housing, and
(b) provide for general stores, community service activities or development that includes home businesses whilst maintaining and enhancing the residential amenity of the surrounding area, and
(c) ensure that housing development respects the character of surrounding development and is of good quality design, and
(d) provide for sustainable water cycle management.
2 Without development consent
Exempt development as provided in Schedule 1.
3 Only with development consent
Development for the purpose of—
bed and breakfast accommodation
boarding houses
child care centres
community facilities
drainage
dual occupancies—attached
dual occupancies—detached
dwelling houses
dwelling houses—exhibition
earthworks
educational establishments
emergency services facilities
environmental facil
This is an opening excerpt, not the complete document.