Part 1 Preliminary

Part 1 Preliminary

1 Name of Plan

1 Name of Plan

This Plan is Lord Howe Island Local Environmental Plan 2010.

2 Commencement and aims of Plan

2 Commencement and aims of Plan

(1) This Plan commences on the day on which it is published on the NSW legislation website.

(2) The aims of this Plan are as follows—

(a) to conserve the World Heritage values of Lord Howe Island and to restore or enhance lost or disturbed natural resources of the Island,

(b) to conserve and facilitate the management of the marine environment of the Island and the resources of that environment,

(c) to protect threatened species, populations and ecological communities, and their habitats,

(d) to encourage the ecologically sustainable use of resources,

(e) to encourage community appreciation of the World Heritage values of the Island,

(f) to enhance the wellbeing and welfare of individuals and the Island’s community by pursuing economic development that safeguards the welfare of future generations,

(g) to facilitate the proper management, development and conservation of the Island’s World Heritage natural environment, the Island’s cultural heritage and the Island lifestyle,

(h) to identify suitable land for the provision of housing and community services for the Island’s population while acknowledging suitable land for these purposes is limited,

(i) to enable, on the limited land available for agriculture, sustainable agriculture (that is, agriculture that contributes to the Island’s economy and also protects the biological and physical resource base on which it depends),

(j) to ensure that public utility undertakings are carried out on the Island in a manner that minimises any environmental impact on the Island of those undertakings,

(k) to acknowledge the importance of tourism to the Island economy and permit future development of tourism within limits,

(l) to ensure that tourism on the Island does not adversely affect the lifestyle of residents, or the World Heritage environmental qualities, of the Island, but enables visitors and residents to enjoy the Island,

(m) to ensure the conservation of relics, specified heritage items and the heritage significance of those relics and heritage items (including the settings of those heritage items),

(n) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts.

(3) The strategies of this Plan that are directed at achieving these aims are as follows—

(a) to apply general land use controls to land within each zone and special provisions for particular kinds of development or for development on particular land,

(b) to identify suitable land for future housing opportunities and limit the total number of future dwellings,

(c) to identify significant native vegetation by a map and to ensure that development does not result in its removal,

(d) to require the advertising of any development application for development that, in the consent authority’s opinion, is likely to have a significantly adverse impact on the environment,

(e) to require consideration of possible adverse environmental, economic or social impacts in advance of development.

cl 2: Am 2020 (724), Sch 1.10.

3 Land to which Plan applies

3 Land to which Plan applies

This Plan applies to Lord Howe Island (the Island), which is the Island defined in section 3 (1) of the Lord Howe Island Act 1953.

4 Definitions

4 Definitions

The Dictionary at the end of this Plan defines words and expressions for the purposes of this Plan.

5 Notes

5 Notes

Notes in this Plan are provided for guidance and do not form part of this Plan.

6 Consent authority

6 Consent authority

Subject to the Act, the Board is the consent authority for the purposes of this Plan.

7 Maps

7 Maps

(1) A reference in this Plan to a map is a reference to a map deposited in the office of the Board.

(2) Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.

(3) For the purposes of this Plan, a map may be in, and may be kept and made available in, electronic or paper form, or both.

8 Relationship with other environmental planning instruments

8 Relationship with other environmental planning instruments

(1) This Plan repeals Lord Howe Island Regional Environmental Plan 2005.

(2) A State environmental planning policy (other than State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004) made before this Plan takes effect does not apply to the land to which this Plan applies.

(3) A State environmental planning policy made after this Plan takes effect does not apply to the land to which this Plan applies unless the policy expressly provides otherwise.

(4) To avoid doubt, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 does not apply to the land to which this Plan applies.

9 Exempt development

9 Exempt development

(1) Development listed in Column 1 of Schedule 1 that is of minimal environmental impact is exempt development if—

(a) it complies with any development standards, and any other requirements, that are specified opposite it in Column 2 of that Schedule, and

(b) it does not require the removal of any significant native vegetation, and

(c) it does not contravene a condition of development consent applying to the land, and

(d) it complies with any deemed-to-satisfy provisions of the Building Code of Australia that are of relevance to the development, and

(e) it does not restrict any vehicular access to or from the site of the development, and

(f) it is not carried out on land that is within Zone 8 Permanent Park Preserve or Zone 9 Marine Park, unless the carrying out of the development on such land is expressly provided for in Column 1 of Schedule 1, and

(g) it is not carried out on land that is critical habitat (within the meaning of the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994), and

(h) it is not proposed to be carried out on the site of—

(i) any heritage item within the meaning of Division 3 of Part 3, or

(ii) any item subject to an interim heritage order under the Heritage Act 1977, and

(i) it is not carried out on land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987).

Note—

Section 76 (2) of the Environmental Planning and Assessment Act 1979 states that an environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.

(2) Development listed in Column 1 of Schedule 1 that is not exempt development because it fails to comply with subclause (1) may be carried out with the consent of the consent authority.

10 Development not prohibited, or otherwise restricted, by this Plan

10 Development not prohibited, or otherwise restricted, by this Plan

(1) Nothing in this Plan prohibits, requires development consent for, or otherwise restricts, the following—

(a) exempt development that is identified in clause 9 (1),

(b) the use by the Crown of any building that was in existence, and was under the control of the Crown, on the commencement of this Plan,

(c) the carrying out of the following by or on behalf of a roads authority (within the meaning of the Roads Act 1993)—

(i) the maintenance or repair of a road, of a traffic device (including a traffic calming device and a device for guiding vehicular traffic or regulating parking) or of bank stabilisation works,

(ii) works associated with the maintenance and repair of a road (including sealing, landscaping, gutter works and drainage works),

(d) the carrying out of the following by persons carrying out public utility undertakings on land comprised in those undertakings—

(i) any development required for the purposes of those undertakings that includes the reconstruction, alteration, maintenance and repair of ways, wharves, works and plant,

(ii) the reconstruction or alteration of any existing building for any purpose related to the undertaking,

(e) the carrying out of environmental protection works by or on behalf of the Board,

(f) the carrying out of coastal protection works by or on behalf of the Board.

(2) Subclause (1) (d) does not apply to the following—

(a) the construction of a new building or a new work, such as an airport, wharf or way, that is related to a public utility undertaking,

(b) the erection, reconstruction or alteration of a building so as to materially affect its design or external appearance,

(c) the formation or alteration of any means of access to a road.

(3) In this clause—

coastal protection works has the same meaning as in the Coastal Management Act 2016.

environmental protection works means works associated with the rehabilitation of land towards its natural state or works to protect land from environmental degradation, and includes vegetation restoration works, wetland protection works, erosion protection works and dune restoration works, but does not include coastal protection works.

cl 10: Am 2022 (29), Sch 1[1] [2].

11 Matters that must be satisfied before development consent granted

11 Matters that must be satisfied before development consent granted

The consent authority must not consent to the carrying out of development unless it is satisfied of the following matters (to the extent that they are of relevance to the proposed development)—

(a) the proposed development is consistent with the aims of this Plan and the objectives of any zone, as set out in this Plan, within which the development is proposed to be carried out,

(b) there is an adequate area available for the disposal or treatment of any effluent arising from the proposed development by an appropriate effluent treatment or disposal system and any such system will not have any adverse effect on groundwater quality,

(c) no part of the proposed development—

(i) will result in any damage to, or the removal of, significant native vegetation, or

(ii) will have a significantly adverse impact on the habitat of any plants, or animals, that are native to the Island,

(d) access is, or will be, available to the site of the proposed development and the provision of any such access will not—

(i) result in any damage to, or the removal of, significant native vegetation, or

(ii) have a significantly adverse impact on the habitat of any plants, or animals, that are native to the Island,

(e) any proposed landscaping will provide various species of plants that are native to the Island and common in the locality to enhance any significant native vegetation,

(f) the proposed development will not be adversely affected by any landform limitations, including flooding, landslip, unstable soils and steep slopes,

(g) adequate services in respect of the proposed development can be provided without significant additional cost to the Board or the community of the Island,

(h) the appearance of the proposed development (when considered by itself or in conjunction with existing buildings and works) will not have any significantly adverse impact on the locality,

(i) the proposed development will not cause any significant overshadowing of adjoining land,

(j) the proposed development will not cause any significant reduction in the privacy of occupiers of adjoining land.

11A Standards that cannot be used to refuse consent—playing and performing music

11A 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 11A: Ins 2020 (724), Sch 3.

Part 2 General provisions applying in particular zones

Part 2 General provisions applying in particular zones

12 Land use zones

12 Land use zones

For the purposes of this Plan, land is within a zone specified below if the land is shown on the map in the manner described below in relation to the zone—

Zone 1 Rural—coloured light brown and edged in black

Zone 2 Settlement—coloured pink and edged in black

Zone 5 Special Uses—coloured yellow and edged in black

Zone 6 Recreation—coloured light green and edged in black

Zone 7 Environment Protection—coloured orange and edged in black

Zone 8 Permanent Park Preserve—coloured dark green and edged in black

Zone 9 Marine Park—coloured light blue and edged in black

Note—

There is no land zoned as Zone 3 Business or Zone 4 Industrial on the Island.

13 Zone 1 Rural

13 Zone 1 Rural

(1) The objectives of Zone 1 Rural are as follows—

(a) to enable sustainable agriculture,

(b) to encourage the availability of Island grown products for both the local population and for tourists,

(c) to provide a rural ambience in areas near Zone 2 Settlement,

(d) to ensure that agricultural activities are not in conflict with the protection of the natural environment.

(2) Except as otherwise provided by this Plan, development for the purposes of any of the following may be carried out on land within Zone 1 Rural without the consent of the consent authority—

(a) agriculture (other than buildings ancillary to agriculture and other than aquaculture or intensive agriculture),

(b) vegetation restoration.

(3) Except as otherwise provided by this Plan, demolition and development for the purposes of any of the following may be carried out on land within Zone 1 Rural only with the consent of the consent authority—

(a) buildings (other than dwellings) ancillary to agriculture,

(b) intensive agriculture,

(c) public utility installations,

(d) public utility undertakings,

(e) roads,

(f) rural industries,

(g) wastewater management systems.

(4) Except as otherwise provided by this Plan, development is prohibited on land within Zone 1 Rural unless it may be carried out under subclause (2) or (3).

cl 13: Am 2015 (292), Sch 1 [1].

14 Zone 2 Settlement

14 Zone 2 Settlement

(1) The objectives of Zone 2 Settlement are as follows—

(a) to provide opportunities for limited residential and commercial development that maintains the dispersed housing pattern of the settlement area and is in sympathy with existing development in relation to the following—

(i) setbacks,

(ii) building mass and style,

(iii) visual amenity,

(iv) landscaped character,

(b) to ensure that any development is only permitted in locations where, in the consent authority’s opinion—

(i) the development will not involve unacceptable infrastructure costs for the Board or the community of the Island, and

(ii) there is an adequate area available for the treatment or disposal of any effluent arising from the proposed development by an appropriate effluent treatment or disposal system, and

(iii) the land is capable of supporting the proposed development and is suitable in terms of the land’s physical constraints (such as vulnerability to erosion, slip or flooding), and

(iv) the development (including any effluent treatment or disposal system referred to in subparagraph (ii)) will not adversely affect groundwater quality,

(c) to avoid or minimise environmental damage and protect areas that—

(i) comprise significant habitat for species of animals that are native to the Island, or

(ii) have significant native vegetation.

(2) Except as otherwise provided by this Plan, development for the purposes of home businesses or vegetation restoration may be carried out on land within Zone 2 Settlement without the consent of the consent authority.

(3) Except as otherwise provided by this Plan, any other development, including development for the purposes of home-based child care, may be carried out on land within Zone 2 Settlement only with the consent of the consent authority.

cl 14: Am 2022 (29), Sch 1[3].

15 Zone 5 Special Uses

15 Zone 5 Special Uses

(1) The objectives of Zone 5 Special Uses are as follows—

(a) to provide utility services that are essential to the community’s needs in a manner that is in sympathy with the World Heritage values of the natural environment of the Island,

(b) to maintain efficient services (such as education, health and transport services and the administration of the Island) and associated infrastructure.

(2) Except as otherwise provided by this Plan, development for the purposes of vegetation restoration may be carried out on land within Zone 5 Special Uses without the consent of the consent authority.

(3) Except as otherwise provided by this Plan, demolition and development for the purposes of any of the following may be carried out on land within Zone 5 Special Uses only with the consent of the consent authority—

(a) accommodation for seniors or people with a disability,

(b) airports,

(c) cemeteries,

(c1) centre-based child care facilities,

(d) depots,

(e) dwellings, erected by or on behalf of the Board, for the accommodation of staff of the Board,

(f) education facilities,

(g) fuel storage depots,

(h) hospitals,

(i) places of assembly,

(j) premises of a public authority,

(k) public utility installations,

(l) public utility undertakings,

(m) roads,

(n) telecommunications facilities,

(o) wastewater management systems.

(4) Except as otherwise provided by this Plan, development is prohibited on land within Zone 5 Special Uses unless it may be carried out under subclause (2) or (3).

cl 15: Am 2015 (292), Sch 1 [2]; 2022 (29), Sch 1[4].

16 Zone 6 Recreation

16 Zone 6 Recreation

(1) The objectives of Zone 6 Recreation are as follows—

(a) to set aside land for open space,

(b) to provide opportunities for the passive and active enjoyment of open space areas,

(c) to provide utility services that are essential to the community’s needs in a manner that is in sympathy with the World Heritage values of the natural environment of the Island.

(2) Except as otherwise provided by this Plan, development for the purposes of vegetation restoration may be carried out on land within Zone 6 Recreation without the consent of the consent authority.

(3) Except as otherwise provided by this Plan, demolition and development for the purposes of any of the following may be carried out on land within Zone 6 Recreation only with the consent of the consent authority—

(a) boatsheds,

(b) clubs,

(c) public utility installations,

(d) public utility undertakings,

(e) recreation areas,

(f) roads,

(g) telecommunications facilities,

(h) wastewater management systems.

(4) Except as otherwise provided by this Plan, development is prohibited on land within Zone 6 Recreation unless it may be carried out under subclause (2) or (3).

cl 16: Am 2015 (292), Sch 1 [3].

17 Zone 7 Environment Protection

17 Zone 7 Environment Protection

(1) The objectives of Zone 7 Environment Protection are as follows—

(a) to protect areas that may be vulnerable to erosion or that are a habitat, or corridor, for animals that are native to the Island or significant native vegetation,

(b) to protect the scenic amenity of land in the zone,

(c) to restore lost or disturbed natural resources, particularly if this may enhance the World Heritage values of the natural environment of the Island,

(d) to provide utility services that are essential to the community’s needs in a manner that is in sympathy with the World Heritage values of the natural environment of the Island.

(2) Except as otherwise provided by this Plan, development for the purposes of vegetation restoration may be carried out on land within Zone 7 Environment Protection without the consent of the consent authority.

(3) Except as otherwise provided by this Plan, demolition, subdivision and development for the purposes of any of the following may be carried out on land within Zone 7 Environment Protection only with the consent of the consent authority—

(a) observation platforms,

(b) public utility installations,

(c) public utility undertakings,

(d) roads,

(e) telecommunications facilities,

(f) the control of erosion,

(g) walking tracks,

(h) wastewater management systems.

(4) Except as otherwise provided by this Plan, development is prohibited on land within Zone 7 Environment Protection unless it may be carried out under subclause (2) or (3).

cl 17: Am 2015 (292), Sch 1 [4].

18 Zone 8 Permanent Park Preserve

18 Zone 8 Permanent Park Preserve

(1) The objective of Zone 8 Permanent Park Preserve is to protect and maintain the Permanent Park Preserve.

(2) Except as otherwise provided by this Plan, development for any purposes may be carried out on land within Zone 8 Permanent Park Preserve without the consent of the consent authority.

Note—

Environmental assessment in respect of development that is permissible without consent may be required under Part 5 of the Environmental Planning and Assessment Act 1979.

Further, any operations undertaken in the Permanent Park Preserve must be in accordance with any plan of management for the Permanent Park Preserve in force under Part 5 of the National Parks and Wildlife Act 1974 (as applied by section 15B of the Lord Howe Island Act 1953).

19 Zone 9 Marine Park

19 Zone 9 Marine Park

(1) The objectives of Zone 9 Marine Park are as follows—

(a) to protect marine ecosystems, habitats and species within Lord Howe Island Marine Park,

(b) to protect the scenic amenity of the Marine Park,

(c) to permit appropriate uses, such as fishing and tourism, that are consistent with any zoning plan for the Marine Park made under Division 1A of Part 3 of the Marine Parks Act 1997.

(2) Except as otherwise provided by this Plan, demolition and development for the purposes of any of the following may be carried out on land within Zone 9 Marine Park only with the consent of the consent authority—

(a) breakwaters,

(b) dredging that is for navigation purposes and, in the consent authority’s opinion, is minor,

(c) jetties,

(d) land reclamation,

(e) platforms,

(f) pontoons,

(g) public utility installations,

(h) public utility undertakings,

(i) ramps (solid or suspended),

(j) slipways,

(k) stairs,

(l) wharves.

(3) Except as otherwise provided by this Plan, development is prohibited on land within Zone 9 Marine Park unless it may be carried out under subclause (2).

Part 3 Special provisions

Part 3 Special provisions

Division 1 Provisions that apply to particular kinds of development

Division 1 Provisions that apply to particular kinds of development

20 Interpretation

20 Interpretation

(1) A reference in this Division to a building that is ancillary to tourist accommodation, staff accommodation or commercial premises does not include a reference to water storage facilities, human waste storage or treatment facilities (such as septic tanks) or exempt development.

(2) A reference in this Division to a dwelling includes a reference to staff accommodation that is a dwelling.

(3) A reference in this Division to staff accommodation does not include a reference to staff accommodation that is a dwelling.

(4) In this Division—

minimum dwelling area, in relation to an allotment, means the area calculated by allowing—

(a) 3,000 square metres for any proposed or existing dwelling (except an existing dwelling referred to in paragraph (b)) on the allotment, or

(b) 2,500 square metres for any existing dwelling on the allotment that was part of a dual occupancy or multiple dwellings immediately before 28 October 2005.

21 Subdivision

21 Subdivision

(1) Despite clause 13, land within Zone 1 Rural may be subdivided with the consent of the consent authority, but only if the area of each proposed allotment is at least 2 hectares.

(2) The consent authority must not consent to the subdivision of land within Zone 2 Settlement unless—

(a) the area of each proposed allotment (except for an allotment referred to in paragraph (b) or (c)) is at least 3,000 square metres, or

(b) if there are one or more existing dwellings (but no existing tourist accommodation, staff accommodation or commercial premises) on a proposed allotment—the total area of the allotment is at least the minimum dwelling area, or

(c) if there is existing tourist accommodation, staff accommodation or commercial premises on a proposed allotment—the total area occupied by any existing buildings comprising, or ancillary to, the accommodation or premises is no more than 15 percent of the balance of the area of the allotment remaining after the minimum dwelling area is deducted from the total area of the allotment.

(3) Despite subclauses (1) and (2) and anything to the contrary in Part 2, land may be subdivided with the consent of the consent authority if—

(a) the consent authority is satisfied that the purpose of the proposed subdivision is to make a minor boundary adjustment between adjoining allotments, and

(b) the proposed subdivision will not divide the land into a greater number of allotments than already exist.

(4) Despite any other provision of this Plan, land may be subdivided with the consent of the consent authority for the purposes of a public utility undertaking, public utility installation, premises of a public authority or recreation area.

22 Tourist accommodation, staff accommodation and commercial premises

22 Tourist accommodation, staff accommodation and commercial premises

(1) The consent authority must not consent to the erection, enlargement or extension of any building comprising, or ancillary to, tourist accommodation, staff accommodation or commercial premises on an allotment unless—

(a) the total area of the allotment occupied by any existing or proposed buildings comprising, or ancillary to, the accommodation or premises is no more than 15 percent of the balance of the area of the allotment remaining after the minimum dwelling area is deducted from the total area of the allotment, and

(b) it is proposed that at least 50 percent of the total area of the allotment be comprised of landscaped areas and that various species of plants that are native to the Island and common to the locality be retained or planted on at least 35 percent of the total area of the allotment, and

(c) the proposed development is carried out on a part of the allotment that does not have any significant native vegetation, and

(d) the consent authority is satisfied that there is a demonstrated business need for the development.

(2) Subclause (1) does not apply to the rebuilding of any part of a building that comprises, or is ancillary to, tourist accommodation, staff accommodation or commercial premises.

(3) The consent authority must not consent to development for the purposes of staff accommodation that is ancillary to tourist accommodation unless the land on which the development is proposed to be carried out is the subject of the same lease as the tourist accommodation.

(4) The consent authority must not consent to development for the purposes of tourist accommodation unless it is satisfied that the total number of persons permitted to be accommodated in all forms of tourist accommodation on the Island will be no more than 400 persons (excluding those under the age of 5 years) at any time.

(5) In this clause—

lease means—

(a) a lease granted and in force under section 21 (Leases in perpetuity for residence) or section 22 (Special leases) of the Lord Howe Island Act 1953, or

(b) a permission to occupy Crown lands granted and in force under section 31A (Permissive occupancies) of that Act, or

(c) a permissive occupancy of Crown lands in force under section 31A (Permissive occupancies) of that Act.

Note—

Under the Lord Howe Island Regulation 2004, the carrying out of a commercial undertaking, including the provision of public accommodation provided predominantly for tourists as a commercial undertaking, requires a licence granted by the Board.

23 Erection of dwellings

23 Erection of dwellings

(1) The consent authority must not consent to the erection of one or more dwellings on an allotment unless—

(a) the gross floor area of each proposed dwelling is no more than 300 square metres, and

(b) the total area of the allotment is at least the minimum dwelling area, and

(c) the total area of the allotment occupied by any existing or proposed buildings comprising, or ancillary to, tourist accommodation, staff accommodation or commercial premises is no more than 15 percent of the balance of the area of the allotment remaining after the minimum dwelling area is deducted from the total area of the allotment, and

(d) it is proposed that at least 50 percent of the total area of the allotment be comprised of landscaped areas and that various species of plants that are native to the Island and common to the locality be retained or planted on at least 35 percent of the total area of the allotment, and

(e) the proposed dwelling or dwellings are erected on a part of the allotment that does not have any significant native vegetation.

(2) A reference in subclause (1) to the granting of consent to the erection of a dwelling includes a reference to the granting of consent to a new use referred to in clause 25.

24 Concession for erection of certain dual occupancies

24 Concession for erection of certain dual occupancies

(1) Despite clause 23 (1) (a) and (b), the consent authority may consent to the erection of a dwelling on an allotment even though the proposal does not conform to those provisions if—

(a) it is proposed that the dwelling be erected as part of a dual occupancy, and

(b) it is proposed that the dual occupancy be comprised of that dwelling (the new dwelling) together with a dwelling that already exists on the land (the existing dwelling), and

(c) (Repealed)

(d) the combined gross floor area of the proposed dual occupancy is no more than 400 square metres, and

(e) it is proposed that each dwelling have at least 50 square metres of private open space at ground level.

(2) A reference in subclause (1) to the granting of consent to the erection of a dwelling includes a reference to the granting of consent to a new use referred to in clause 25.

(3) This clause does not apply in relation to a dwelling, erected by or on behalf of the Board, for the accommodation of staff of the Board.

Note—

Allotments occupied by dual occupancies will not be able to be subdivided under clause 21 (2) unless the total area of each proposed allotment is at least the minimum dwelling area. The minimum dwelling area for each dwelling on the proposed allotment created from the subdivision of a dual occupancy or multiple dwellings is 3,000 square metres.

cl 24: Am 2022 (29), Sch 1[5].

25 New use of a building as a dwelling

25 New use of a building as a dwelling

The consent authority must not consent to a new use of a building as a dwelling unless the building was erected prior to 28 October 2005.

26 Limit on number of dwellings to which consent may be given

26 Limit on number of dwellings to which consent may be given

(1) In any period, consent may be granted for the erection of no more than the total number of dwellings determined by the Board and approved by the Director-General in respect of that period for the purposes of this clause.

(2) Regardless of the total number of dwellings determined for the purposes of subclause (1), consent may be granted for the erection of no more than a total of 25 dwellings during a period of 20 years commencing on 28 October 2005.

(3) This clause does not apply in relation to the rebuilding of a lawfully erected dwelling.

(4) A reference in subclauses (1) and (2) to the granting of consent to the erection of a dwelling includes a reference to the granting of consent to a new use referred to in clause 25.

27 Enlargements or extensions of dwellings

27 Enlargements or extensions of dwellings

(1) The consent authority must not consent to the enlargement or extension of a dwelling on an allotment unless—

(a) the proposed gross floor area of the dwelling is no more than 300 square metres, and

(b) the proposed enlargement or extension will not result in the removal of any significant native vegetation, and

(c) it is proposed that at least 50 percent of the total area of the allotment be comprised of landscaped areas and that various species of plants that are native to the Island and common to the locality be retained or planted on at least 35 percent of the total area of the allotment.

(2) Despite subclause (1) (a), the consent authority may consent to the enlargement or extension of a dwelling having a proposed gross floor area that is more than 300 square metres if—

(a) the dwelling forms part of a dual occupancy, and

(b) it is proposed that the dwelling be occupied by the children, siblings, parents, grandparents or grandchildren of those proposing to reside in the other dwelling, and

(c) the proposed combined gross floor area of the dual occupancy is no more than 400 square metres.

(3) This clause does not apply to the rebuilding of any part of a dwelling.

28 Accommodation for seniors or people with a disability

28 Accommodation for seniors or people with a disability

(1) Despite clauses 14 and 15, development for the purposes of accommodation for seniors or people with a disability may only be carried out, on land within Zone 2 Settlement or Zone 5 Special Uses, by or on behalf of the Board.

(2) In this clause—

accommodation for seniors or people with a disability means a hostel or residential care facility.

hostel means residential accommodation that is, or is intended to be, used permanently as accommodation for seniors or people with a disability where—

(a) meals, laundering, cleaning and other facilities are provided on a shared basis, and

(b) at least one staff member is available on site 24 hours a day to provide management services.

people with a disability means people of any age who, as a result of an intellectual, physical, psychiatric or sensory impairment, either permanently or for an extended period, have substantially limited opportunities to enjoy a full or active life.

residential care facility means residential accommodation that is, or is intended to be, used permanently as accommodation for seniors or people with a disability and that includes—

(a) meals and cleaning services, and

(b) personal care or nursing care, or both, and

(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care.

seniors means people aged 55 years or more.

29 Maximum height of buildings

29 Maximum height of buildings

(1) Despite anything to the contrary in Part 2 or any other provisions of this Part, the erection of a building that has a height of more than 7.5 metres above natural ground level is prohibited.

(2) Subclause (1) does not apply to the erection of—

(a) a building for the purposes of public utility undertakings, and

(b) aerials, masts or communication structures.

30 Advertisements or signs

30 Advertisements or signs

(1) Despite anything to the contrary in Part 2, the placement or erection of an advertisement or sign may be carried out, but only with the consent of the consent authority.

(2) Despite subclause (1), the placement or erection of the following kinds of advertisements or signs is prohibited—

(a) any advertisement or sign placed or erected on land within Zone 6 Recreation, Zone 7 Environment Protection, Zone 8 Permanent Park Preserve or Zone 9 Marine Park,

(b) any advertisement or sign that promotes an event and is placed on public property.

31 Vegetation restoration

31 Vegetation restoration

Development for the purposes of vegetation restoration must be carried out in accordance with the Lord Howe Island Board Vegetation Rehabilitation Plan, as adopted by the Board in March 2003.

Division 2 Provisions that apply to particular land

Division 2 Provisions that apply to particular land

32 Setbacks of buildings in Zone 1, 2 or 5

32 Setbacks of buildings in Zone 1, 2 or 5

(1) This clause applies to land within Zone 1 Rural, Zone 2 Settlement or Zone 5 Special Uses.

(2) Any building proposed to be erected on an allotment of land to which this clause applies must comply with the following requirements—

(a) if the allotment has one boundary adjoining a road—the building must be erected at least 10 metres from that boundary and at least 5 metres from any other boundary of the allotment,

(b) if the allotment has more than one boundary adjoining a road—the building must be erected at least 10 metres from one of those boundaries and at least 5 metres from any other boundary of the allotment,

(c) in any other case—the building must be erected at least 5 metres from any boundary of the allotment.

(3) Despite subclause (2), a proposed building (including any alteration to, or any enlargement or extension of, an existing building) that does not comply with the requirements set out in subclause (2) may be erected with the consent of the consent authority on land to which this clause applies if, in the consent authority’s opinion, compliance with the requirements would be unreasonable (for example, because of the physical constraints of the land) or unnecessary.

33 Landscaping to be carried out in Zone 2

33 Landscaping to be carried out in Zone 2

The consent authority must not consent to the carrying out of any development on land within Zone 2 Settlement unless it is satisfied that there will be no significantly adverse impact on the existing landscaped character and dispersed pattern of housing in that zone.

34 Land adjoining Zone 7 or 8

34 Land adjoining Zone 7 or 8

(1) Despite anything to the contrary in Part 2 or the other provisions of this Part, development consent is required for development that is proposed to be carried out—

(a) within 10 metres of land within Zone 7 Environment Protection, or

(b) within 20 metres of land within Zone 8 Permanent Park Preserve.

(2) In determining a development application for development referred to in subclause (1), the consent authority must take into consideration any of the following matters that are of relevance to the proposed development—

(a) the desirability of restoring the land on which it is proposed that the development be carried out, as far as is possible, to its original natural state,

(b) the need to encourage the growth of only plants that are native to the Island on the land on which it is proposed that the development be carried out,

(c) the need to prevent plants that are not native to the Island spreading to Zone 8 Permanent Park Preserve,

(d) the Lord Howe Island Board Vegetation Rehabilitation Plan, as adopted by the Board in March 2003 and amended from time to time.

35 Foreshore development

35 Foreshore development

(1) Despite anything to the contrary in Part 2 or the other provisions of this Part, development on the foreshore area is prohibited.

(2) Despite subclause (1), development on the foreshore area may be carried out with consent if, in the consent authority’s opinion—

(a) the proposed development is in the public interest and does not significantly reduce public access to the foreshore, and

(b) the bulk and scale of the proposed development will not detract from the visual amenity of the foreshore area, and

(c) the proposed development addresses any need to restore lost or disturbed plants that are native to the Island, particularly if restoring those plants may enhance visual amenity, and

(d) there is a demonstrated Island community-based, or marine-based, business need for it, and

(e) the proposed development will not be adversely affected by, or adversely affect, coastal processes, and

(f) in the case of proposed development involving the erection of a structure—the purpose of that structure could not practicably be fulfilled by an existing structure.

(g) (Repealed)

(3) In this clause—

foreshore area means the land between the Foreshore Building Line as shown on Sheet 2 of the map and the mean high water mark.

cl 35: Am 2021 (716), Sch 1.14[1] [2].

36 Unzoned land

36 Unzoned land

(1) Development that may be carried out with or without the consent of the consent authority, under Part 2 or any other provisions of this Part, on land in a zone adjoining unzoned land may be carried out with the consent of the consent authority on the unzoned land.

(2) The carrying out of any other development on unzoned land is prohibited.

(3) The consent authority must not consent to development on unzoned land unless it is satisfied that the proposed development will not have a significantly adverse impact on the amenity of the locality and the future pattern of development of land in any adjoining zone.

(4) In this clause—

unzoned land means land that is not within a zone listed in clause 12.

37 Land adjacent to Blinky Beach—airport uses

37 Land adjacent to Blinky Beach—airport uses

Despite anything to the contrary in Part 2, development on land shown hatched black on the map may be carried out for any purpose associated with airports with the consent of the consent authority.

37A Additional permitted uses

37A Additional permitted uses

(1) Development on particular land described or referred to in Schedule 4 may, in accordance with any conditions specified in the Schedule in relation to the development, be carried out—

(a) with development consent, or

(b) if the Schedule provides—without development consent.

(1A) This clause prevails over clauses 34 and 35.

(2) This clause has effect despite anything to the contrary in Part 2 or the other provisions of this Part.

cl 37A: Ins 2022 (29), Sch 1[6]. Am 2024 (32), Sch 1[1].

Division 3 Heritage conservation

Division 3 Heritage conservation

38 Definitions

38 Definitions

In this Division—

heritage item means a place, building, tree or work listed in Schedule 2.

heritage significance means historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.

maintenance, in relation to a heritage item, means the ongoing protective care of the item. It does not include alterations (such as extensions or additions) or the introduction of new materials or technology.

relic means any deposit, object or material evidence (including human remains) that relates to the settlement or use of the Island and is more than 50 years old.

Note—

An item identified by this Plan as a heritage item may also be a relic. Therefore, consideration should be given, in particular cases, to whether any of the clauses in this Division applying to relics (such as clause 39 (1) (f)) apply to such heritage items as well as to relics that are not identified by this Plan as heritage items.

39 Development affecting heritage items

39 Development affecting heritage items

(1) Despite anything to the contrary in Part 2, the following development may be carried out only with the consent of the consent authority—

(a) wholly or partially destroying, dismantling or defacing a heritage item,

(b) altering a heritage item by making structural or non-structural changes to its exterior, such as to its detail, fabric, finish or appearance,

(c) altering a heritage item by making structural changes to its interior,

(d) moving the whole or any part of a heritage item,

(e) erecting a building on, or subdividing, land on which a heritage item is located,

(f) disturbing or excavating any land, 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.

(2) Development consent is not required by this clause if—

(a) in the consent authority’s opinion—

(i) the proposed development is of a minor nature or consists of maintenance of the heritage item, and

(ii) the proposed development would not adversely affect the heritage significance of the heritage item, and

(b) the proponent has notified the consent authority in writing of the proposed development and the consent authority has advised the proponent in writing before any work is carried out that—

(i) the consent authority is satisfied that, in its opinion, the proposed development meets the criteria set out in paragraph (a) (i) and (ii), and

(ii) development consent is not otherwise required by this Plan.

(3) Development consent is not required by this clause for the following development in a cemetery or burial ground if there will be no disturbance to human remains or to relics in the form of grave goods—

(a) the creation of a new grave or monument,

(b) the excavation or disturbance of land for the purpose of carrying out conservation or repair of monuments or grave markers.

40 Assessment

40 Assessment

(1) In deciding whether to grant development consent required by clause 39, the consent authority must consider—

(a) the extent to which carrying out the development may adversely affect the heritage significance of the heritage item or, for development referred to in clause 39(1)(f), the relic, and

(b) the impact the development may have on other heritage items near the proposed development.

(2) For the purposes of subclause (1)(a), the consent authority must consider a statement that addresses the following issues—

(a) the heritage significance of the item or relic as part of the environmental heritage of the Island,

(b) any impact that the proposed development may have on the heritage significance of the heritage item and its setting (including any landscape or horticultural features) or the relic,

(c) any measures proposed to conserve the heritage significance of the item and its setting or the relic,

(d) whether any site known to contain relics (or any other site that, in the opinion of the consent authority, potentially contains relics) may be adversely affected by the proposed development,

(e) the extent to which the carrying out of the proposed development may affect any historically significant allotment boundaries, including historically significant curtilages and roads.

(3) The statement is to address other issues relating to the heritage significance of the item or relic concerned if the consent authority or proponent is aware of such issues.

(4) The consent authority may also determine that it is necessary for a conservation management plan to be prepared in relation to the heritage item or relic concerned.

(5) In this clause—

conservation management plan means a document, prepared in accordance with the requirements of the Department of Planning in relation to such plans, that identifies conservation policies and management mechanisms that are appropriate to enable the heritage significance of a heritage item or relic to be retained.

cl 40: Am 2015 No 58, Sch 2.18; 2022 (29), Sch 1[7] [8].

Division 4 Miscellaneous

Division 4 Miscellaneous

41

41 (Repealed)

42 Requirement for environmental report

42 Requirement for environmental report

(1) The consent authority must not consent to the following development unless it has considered an environmental report containing the matters specified in Schedule 3—

(a) development for the purposes of public utility installations,

(b) development for the purposes of public utility undertakings,

(c) development that, in the opinion of the consent authority, is likely to have a significantly adverse impact on the environment.

(2) An environmental report is not required to be prepared in relation to development referred to in subclause (1) if the development is designated development.

Note—

Under section 78A of the Environmental Planning and Assessment Act 1979, a development application for designated development must be accompanied by an environmental impact statement.

(3) An environmental report is not required to be prepared in relation to development referred to in subclause (1) (b) if the development involves the subdivision of land and the relevant public utility undertaking already exists.

(4) An environmental report is not required to be prepared under subclause (1) (c) if—

(a) in the opinion of the consent authority, the significantly adverse impacts that the development is likely to have on the environment is comprised exclusively of impacts on—

(i) land that is, or is part of, critical habitat, or

(ii) threatened species, populations or ecological communities, or their habitats, and

(b) a species impact statement has been prepared in relation to the proposed development and, in the opinion of the consent authority, those impacts are comprehensively addressed by the species impact statement.

Schedule 1 Exempt development

Schedule 1 Exempt development

(Clause 9)

Note—

Publications referred to in this Schedule, including Australian Standards, may be inspected at the office of the Board.

| Column 1 | Column 2 | | Development | Development standards and other requirements | | Advertisement or sign | (a) Must not cover any mechanical ventilation vents.(b) Must not be internally illuminated. | | Advertisement or sign behind a shop window | No additional requirements. | | Advertisement or sign on a vehicle or trailer | (a) The vehicle or trailer must primarily be used for the conveyance of goods or passengers.(b) The vehicle or trailer must not be parked solely for the purposes of advertising or promotion. | | Business identification sign | (a) Not more than one for each business premises concerned.(b) Must be installed on the land from which the business is operating.(c) Must not exceed 0.9 square metre.(d) If on premises with an awning—the advertisement or sign must be located below the level of the awning.(e) If installed on premises without an awning—the top of the advertisement or sign must be located less than 2 metres above ground level.(f) Must not cover more than 20 percent of the area of the front of any building from which the business is operating. | | Navigation sign (including a public notice erected on, or placed in, Zone 8 Permanent Park Preserve or Zone 9 Marine Park) | Must be installed by or on behalf of a public authority. | | Public notice (including a public notice erected on, or placed in, Zone 8 Permanent Park Preserve or Zone 9 Marine Park) | Must be installed by or on behalf of a public authority. | | Replacing an advertisement, or sign (but not any part of an advertisement or a sign that is a structure) | Advertisement or sign must relate to the purpose for which the land on which it is placed is used. | | Temporary advertisement or sign relating to an event | (a) Must not exceed 5 square metres.(b) Must not be installed more than 28 days before the subject event.(c) Must be removed within 48 hours after the subject event.(d) Limit of 2 per event. | | Tourist directory sign (including a tourist directory sign erected on, or placed in, Zone 8 Permanent Park Preserve or Zone 9 Marine Park) | Must be installed by or on behalf of a public authority. | | Aerial or antenna | (a) Must be installed on land within Zone 1 Rural, Zone 2 Settlement or Zone 5 Special Uses.(b) If roof mounted—topmost point must not be more than 3.5 metres above topmost point of roof. | | Awning or patio (not enclosed) | (a) Must be located on land within Zone 2 Settlement.(b) Maximum area of 10 square metres.(c) Must comply with following setbacks—(i) if allotment on which awning or patio is to be installed has one boundary adjoining a road—must be installed at least 10 metres from that boundary and at least 5 metres from any other boundary of the allotment,(ii) if allotment has more than one boundary adjoining a road—awning or patio must be installed at least 10 metres from one of those boundaries and at least 5 metres from any other boundary of allotment,(iii) in any other case—awning or patio must be installed at least 5 metres from any other boundary of allotment.(d) Roof water must be disposed of without causing nuisance to adjoining premises. | | Barbecue | (a) Must be installed on land within Zone 2 Settlement.(b) Maximum area of 2 square metres.(c) Maximum height, including any chimneys, of 1.8 metres.(d) Must not be installed in any location visible at street level. | | Building alterations (external) | (a) Non-structural alterations to the exterior of a building only, such as painting, cement rendering, cladding, attaching fittings and decorative work.(b) Any recladding must not change roof shape or increase building footprint.(c) Any new windows to be offset to any windows in building on adjoining property.(d) Must not reduce light or ventilation to the building.(e) Structural support members must not be removed.(f) Colour selection of materials used must be compatible with the neighbourhood. | | Building alterations (internal) | (a) Must not affect the load-bearing capacity of any load-bearing component of the building.(b) May be made to lawfully completed buildings only.(c) Does not include any conversion of non-habitable rooms to habitable rooms.(d) Does not include any change to configuration of rooms whether by removal of existing walls or partitions or by other means.(e) Does not include any alterations that result in change in classification of building concerned under the Building Code of Australia.(f) Does not include fit out of commercial kitchen or of any business premises, such as a restaurant or cafe, intended to be used for preparation and consumption of food.(g) Must not reduce window arrangements for light and ventilation, reduce doorways for egress or enclose internal open living space.(h) Must not compromise fire safety or affect accessibility to a fire exit from any part of the building. | | Cabana, cubby house, garden shed, gazebo, green house, aviary, or fowl or poultry house | (a) Must be erected on land within Zone 1 Rural or Zone 2 Settlement.(b) Maximum area of 10 square metres.(c) Maximum height of 2.4 metres.(d) Must not be erected in any location visible at street level.(e) No more than one of each per allotment.(f) No internal plumbing.(g) Roof water must be disposed of without causing nuisance to adjoining premises.(h) Must not be used for dwelling or for commercial premises. | | Clothes hoist or line | (a) Must be installed on land within Zone 2 Settlement or Zone 5 Special Uses.(b) Must be installed to manufacturer’s specifications.(c) Must not be visible from street. | | Demolition of a structure | (a) Must comply with AS 2601—2001, The demolition of structures.(b) The erection of the structure would be exempt development under this Plan. | | Domestic solid fuel or oil heater | (a) Must be installed on land within Zone 2 Settlement.(b) Fireplace must be installed in accordance with manufacturer’s instructions. | | Driveway or pathway | (a) Must be of structurally sound and stable construction and have adequate reinforcement.(b) Must not be elevated or suspended above natural ground level.(c) Stormwater must not be directed by the driveway or pathway onto adjoining property. | | Fabric shade structure | (a) Must be erected on land within Zone 1 Rural, Zone 2 Settlement or Zone 5 Special Uses.(b) Maximum area of 20 square metres.(c) On land within Zone 2 Settlement must not be erected in any location visible at street level. | | Flagpole | (a) Maximum height of 6 metres.(b) Must not extend into any obstacle height limitation surface (as identified on the map marked “Lord Howe Airport Existing Obstacle Limitation Surfaces” deposited in the office of the Board) surrounding the Lord Howe Island Airport. | | Mooring (including on land within Zone 9 Marine Park) | Must be located in accordance with permission obtained under the Marine Parks Act 1997 and Lord Howe Island Act 1953. | | Park or street furniture (comprising seats, bins, picnic tables or shelters) | (a) Construction must be carried out by or on behalf of the Board.(b) Must be installed on land under the control of the Board. | | Playground equipment | (a) In the case of residential use—a maximum height of 2.5 metres.(b) In the case of non-residential use—a maximum height of 2.5 metres and maximum ground coverage of 10 square metres.(c) Must be designed, fabricated and installed in accordance with AS 1924.2—1981, Playground equipment for parks, schools and domestic use, Part 2: Design and construction—Safety aspects. | | Ramp for persons with a disability | (a) Maximum height of 1 metre.(b) Grade must comply with AS 1428.1—2001, Design for access and mobility, Part 1: General requirements for access—New building work and be a maximum of 1:14. | | Satellite dish | Installation and use must be in accordance with the Satellite Earth-Station Dish Policy, adopted by the Board on 13 December 1996. | | Solar energy systems | (a) Must be attached to the roof of a building.(b) Must not reduce the structural integrity of, or involve structural alterations to, a building to which the system is attached.(c) Must not be higher than 0.5 metres above the part of the roof to which the system is attached.(d) Must not extend beyond the edge of the roof to which the system is attached.(e) Must not involve mirrors or lenses to reflect or concentrate sunlight.(f) Must not have the capacity to generate more than 10 kilowatts.(g) For a photovoltaic electricity generating system—the system must be installed—(i) in accordance with the manufacturer’s specifications, or(ii) by a person who is accredited by the Clean Energy Council to install photovoltaic electricity generating systems.(h) For a solar hot water system or solar air heating system—the system must be installed in accordance with the manufacturer’s specifications. | | Telecommunications facility(comprising microcell installation, in-building coverage installation, pit, manhole, underground equipment shelter or housing, underground conduit or cable, public pay phone cabinet or booth, pillar, roadside cabinet, pedestal or external equipment shelter) | Must be carried out by or on behalf of a public authority. | | Wastewater management systems | (a) Must be installed on land within Zone 2 Settlement.(b) Must be used for domestic purposes.(c) Must not be located on land identified as “Significant Native Vegetation” on Sheet 3 of the map.(d) Must comply with the design, construction and installation requirements of the Lord Howe Island On-Site Wastewater Management Strategy developed by the Board and dated April 2013.(e) Treatment and disposal devices must not be located in a flood hazard area (as identified on the map marked “Flood Hazard Map” deposited in the office of the Board). | | Water tank (including on land within Zone 6 Recreation, Zone 7 Environment Protection or Zone 8 Permanent Park Preserve if carried out by or on behalf of the Board) | (a) Materials must be non-reflective and muted, natural tones.(b) Any storm water or overflow from water tank must be directed away from any neighbouring property. |

sch 1: Am 2015 (292), Sch 1 [5]; 2022 (29), Sch 1[9] [10].

Schedule 2 Heritage items

Schedule 2 Heritage items

(Clause 38)

Baxter house, Lagoon Road, Portion 158.

Boatsheds, Lagoon Road, Government Reserve.

Cargo shed related to wharf, Lagoon Road, Government Reserve.

Family cemetery at “Pinetrees”, Lagoon Road, Portion 236.

Government House, Bowker Avenue, Portion 37.

House (formerly teacher’s residence and formerly G Nichols’ house), Lagoon Road, Portion 12.

“Janetville”, King’s house, Lagoon Road, Portion 127.

“Kentia” (formerly house of A Christian), Lagoon Road, Portion 111.

Main cemetery, Cemetery Road, part Portion 76.

Old Settlement Beach area, beyond northern end of Lagoon Road, including Portions 74, 75, 275 and 276.

Pair of mature Norfolk Island pine trees, Lover’s Bay, Government Reserve, Lagoon Road.

“Palmhaven”, Garton house, south end of Anderson Road, Portion 161.

Public hall, corner Lagoon Road and Ned’s Beach Road, Portion 61.

Soldier Creek area, being the site of Johnson’s farm and 1882 Commissioner’s Camp, Lagoon Road, Portions 126 and 123.

Stone-lined drains on golf course, Lagoon Road, Portions 118, 120 and 299.

Thompson family cemetery, off Ocean View Drive, Portion 55.

Thompson house, Ned’s Beach Road, Portions 199 and 209.

Traces of T B Wilson’s house, Lagoon Road, Portion 285.

War Memorial, Lagoon Road, Portion 35.

World War I Memorial, Lagoon Road, Portion 36.

Schedule 3 Contents of environmental report

Schedule 3 Contents of environmental report

(Clause 42)

Schedule 4 Additional permitted uses

Schedule 4 Additional permitted uses

clause 37A

sch 4: Ins 2022 (29), Sch 1[11]. Am 2024 (32), Sch 1[2].