Penrith Local Environmental Plan No 255—Exempt and Complying Development

The plan sets out three central legal concepts: exempt development, complying development and geographic/subject-matter exclusions. Each concept is defined by reference to Part 5 of the Penrith DCP 2006 and by the statutory relationships the plan establishes.

Exempt development: Clause 7(1) states that development of minimal environmental impact that is listed as exempt development in Part 5 of the DCP (as adopted by Council on 21 August 2006) is to be treated as exempt development despite any other environmental planning instrument applying to the land. The operative effect is to authorise certain low-impact works to proceed without development consent, where they are listed in the specified DCP part and the land is not excluded under clause 2(2).

Complying development: Clause 7(2) converts items listed as complying development in the same Part 5 DCP into statutory complying development, but only where two conditions are met: (a) the development is local development of a kind that could lawfully be carried out with consent on the land; and (b) it is not an existing use as defined in section 106 of the Act. This ties the availability of complying development to both the nature of the development and the lawful land-use status of the parcel.

Standards and conditions: Clause 7(3) makes compliance with the Part 5 standards and other requirements a prerequisite for the work to be exempt or complying development. Clause 7(4) requires any complying development certificate to include the conditions specified in Part 5 of the DCP as those conditions are “in force when the certificate is issued.” The two sub-clauses together mean the DCP’s technical limits and conditions operate as the rules and certificate schedules for both self-assessed exempt work and certificated complying development.

Geographic and subject-matter exclusions: Clause 2(2) lists categories of land to which the plan does not apply, for example critical habitat under the Threatened Species Conservation Act 1995, areas affected by recovery or threat abatement plans, wilderness areas (Wilderness Act 1987), Aboriginal relics under the National Parks and Wildlife Act 1974, items listed in the Register of the National Estate, aquatic reserves (Fisheries Management Act 1994), land reserved under Crown Land Management Act 2016 for preservation, land that is or adjoins the Hawkesbury-Nepean River, various coastal and biodiversity protection areas under specified State Environmental Planning Policies, environmental heritage items, land subject to orders under the Heritage Act 1977, and land shown as “EXCLUDED LAND” or “DEFERRED MATTER” on the plan’s map (cl 2(2)(a)-(m)). These exclusions function as bright-line limits on the plan’s territorial reach.

Relationship to other instruments: Clause 3(1) prescribes that this plan prevails over other local LEPs or deemed LEPs to the extent of inconsistency, but expressly preserves the application of Penrith Local Environmental Plan 1991 (Environmental Heritage Conservation) (cl 3(3)) and does not affect specified State Environmental Planning Policies (cl 3(4)). This establishes a hierarchy and exceptions for heritage and specified state policy areas.

Suspension of private covenants: Clause 4(1) suspends any private agreement or covenant to the extent necessary to permit exempt development under the plan, while clause 4(2) preserves rights of public authorities under registered instruments. The Governor’s approval under section 28 of the Act is recorded in clause 4(3), which provides statutory authority for the suspension.

Map and incorporation mechanics: Clause 6 defines the “map” as the instrument-deposited map marked “Penrith Local Environmental Plan No 255,Exempt and Complying Development” deposited in the office of the Council, and notes that amending maps are deposited as marked. An editorial note indicates the amending maps are not necessarily listed in gazettal order and references a Historical notes function to determine that order. The plan thus binds to a Council-held map and to the particular Part 5 of DCP as adopted, rather than to an external state instrument.

Aim: Clause 5 declares the aim of the plan, to provide for exempt and complying development in the City of Penrith. That aim is operative through the specific rules and caveats laid out elsewhere (cl 5).

Together, these concepts turn a local DCP part into statutory authorisations and conditions, while creating a series of compulsory checks and limits: the land must not be excluded, the works must be listed and comply with Part 5 standards, the development must not be an existing use, and certain state-level and heritage instruments continue to apply.

This plan affects multiple parties in predictable and specific ways because it changes when development consent is required and which local instruments apply.

Landowners and developers within the City of Penrith: Clause 2(1) makes the plan applicable to all land in the City of Penrith, subject to exclusions in clause 2(2). For land that is covered, owners and applicants who propose works listed in Part 5 of the DCP as either exempt or complying development can proceed under the plan’s regime rather than seeking development consent, provided they meet the listed conditions in clause 7. That reduces formal consent steps for eligible works but imposes the requirement to satisfy the Part 5 standards and conditions (cl 7(1)-(4)).

Owners of excluded or protected land: Owners of land falling into any of the clause 2(2) categories , for example land that is critical habitat, subject to threatened species plans, part of a wilderness area, Aboriginal relic land, listed environmental heritage, aquatic reserves, Crown land dedicated for conservation, land adjoining the Hawkesbury-Nepean River, areas covered by specified SEPP protections, or land shown on the map as “EXCLUDED LAND” or “DEFERRED MATTER” , are not able to take advantage of the exemptions or complying development pathways established by this plan (cl 2(2)). For those owners, the standard development consent processes and the protections in the relevant environmental and heritage statutes will continue to govern proposals.

Councillors and the Council of the City of Penrith: The plan defines Council as the Council of the City of Penrith (cl 6). The plan refers repeatedly to the Part 5 of the Council-adopted DCP, and the map is deposited in the Council office (cl 6). That places practical responsibilities on the local authority to maintain, make available and apply the map and to administer and enforce compliance with the DCP-derived standards. The Council is also the statutory maker of the adopted DCP reference point (21 August 2006), so its prior adoption underpins the exemptions and complying development categories (cl 7).

Certifiers and decision-makers who issue complying development certificates: Clause 7(4) requires that any complying development certificate be subject to the conditions for the development specified in Part 5 of the DCP as in force when the certificate is issued. Private certifiers and council certifiers therefore must apply and attach those Part 5 conditions at the time of certificate issue and must ensure the proposed development meets the DCP requirements in force at that time (cl 7(3)-(4)).

Holders of private covenants and parties to restrictive instruments: Clause 4(1) suspends agreements, covenants or similar instruments that would otherwise prohibit or restrict exempt development allowed by this plan to the extent necessary to allow that development. This directly affects parties enforcing or relying on private covenants to restrict works that would otherwise be exempt under the plan. However, clause 4(2) preserves the rights or interests of public authorities under registered instruments, so public authorities with registered rights remain able to rely on them (cl 4(1)-(2)).

State agencies and holders of interests under specific SEPPs or heritage instruments: Although the plan prevails in the event of inconsistency with other local environmental planning instruments (subject to clause 3 and section 36 of the Act) (cl 3(1)), clause 3(3) and (4) affirm that certain instruments remain applicable. Penrith Local Environmental Plan 1991 (Environmental Heritage Conservation) is expressly preserved for land to which the plan applies (cl 3(3)). The plan also expressly does not affect the application of four specified State Environmental Planning Policies (Transport and Infrastructure 2021 Chapter 2; Resources and Energy 2021 Chapter 3; Precincts,Western Parkland City 2021 Chapter 5; Biodiversity and Conservation 2021 Chapter 6) (cl 3(4)(a)-(d)). State agencies and holders of rights under those SEPP chapters therefore continue to operate under their statutory rules on relevant land.

Public authorities holding registered instruments: Parties that hold rights or interests under registered instruments (for example public authorities with registrations on title) continue to have those rights preserved under clause 4(2), and the clause records that the Governor approved the suspension provisions in accordance with section 28 of the Act prior to the making of the plan (cl 4(2)-(3)).

Practitioners, advisers and compliance officers: Lawyers, planners, certifiers, accountants advising developers, and compliance officers who advise on development activity in Penrith must check the DCP Part 5 lists and standards, the plan’s exclusions (cl 2(2)), the map held in Council offices (cl 6), the interaction with heritage and listed SEPPs (cl 3(3)-(4)), and the requirement that complying development certificates carry Part 5 conditions as in force at the time of issue (cl 7(3)-(4)). Their role will involve verifying whether a proposed activity is an “existing use” within the meaning of section 106 of the Act , a statutory definition tied to the Act (cl 7(2)(b)) , and advising on the effect, if any, of private covenants given the suspension in clause 4.

Overall, the plan primarily affects owners and proponents of low-impact development across Penrith by enabling an alternative, faster route for certain works, while preserving protections and rights for specified ecological, heritage and public-authority interests and requiring certifiers to apply the DCP conditions current at time of certificate issue.

The plan imposes duties and confers rights that are narrow and specific; most duties derive from the requirement to comply with the Part 5 standards in the Penrith DCP and from the plan’s territorial and subject-matter limits.

Duty to check territorial applicability: The first duty for any proponent is to establish whether the land is within the City of Penrith (cl 2(1)) and not one of the excluded categories listed in clause 2(2). If the land falls within any exclusion , for example critical habitat, land affected by a recovery plan or threat abatement plan, wilderness areas, Aboriginal relics, items in the Register of the National Estate, aquatic reserves, reserved Crown land for preservation, land adjoining the Hawkesbury-Nepean River, coastal wetlands identified on the Coastal Wetlands and Littoral Rainforests Area Map, items of environmental heritage, land subject to a Heritage Act order, or land shown as “EXCLUDED LAND” or “DEFERRED MATTER” on the plan map , the plan does not apply and the proponent cannot rely on these exemptions (cl 2(2)(a)-(m)).

Duty to meet DCP Part 5 standards: Clauses 7(1) and 7(3) make compliance with the development standards and other requirements in Part 5 of the Penrith DCP a legal precondition to claiming exempt or complying development status. This creates a compliance obligation , not merely a guidance obligation , to satisfy the technical limits, siting, materials, and other controls listed in that Part of the DCP (cl 7(1), (3)).

Duty for certifiers on conditions: Clause 7(4) imposes a duty on the issuing authority (whether private certifier or council) to ensure that any complying development certificate is subject to the Part 5 conditions that apply at the time the certificate is issued. Certifiers therefore must locate and apply the Part 5 conditions “as in force when the certificate is issued” and include them in the certificate (cl 7(4)).

Right to proceed without development consent for exempt works: Where development is listed as exempt in Part 5 of the DCP and the land is not excluded, the plan confers the right to proceed without obtaining development consent, subject to the condition that the works comply with the DCP requirements (cl 7(1), (3)). The operative effect is that the statutory consent requirement under the Act is displaced, to the extent permitted by the plan, for those items.

Right to rely on complying development pathway: Where works are listed as complying development in Part 5 and meet the two qualifying tests in clause 7(2) , they are a kind of local development that could be carried out with consent on the land, and they are not an “existing use” as defined in section 106 of the Act , proponents have the right to obtain a complying development certificate rather than lodging a development application, provided they meet the DCP standards and the certifier imposes the current Part 5 conditions on the CDC (cl 7(2), (3), (4)).

Suspension of private covenants: Clause 4(1) creates a right (or opportunity) for proponents by suspending the operation of any private agreement, covenant or similar instrument that would otherwise prohibit or restrict exempt development allowed by the plan, to the extent necessary to allow that development. The law therefore prevents, in those circumstances, enforcement of private restraints that would frustrate an exempt development listed in Part 5. That statutory suspension is, however, limited by clause 4(2), which preserves the rights or interests of public authorities under registered instruments (cl 4(1)-(2)).

Right of public authorities under registered instruments preserved: Public authorities that hold registered instruments retain their rights and interests notwithstanding the suspension of private covenants (cl 4(2)). The plan therefore differentiates between private restrictive instruments and public authority registered interests.

Duty to respect preserved instruments and state policies: Clause 3(3) and (4) import a duty on proponents and decision-makers to respect the ongoing application of Penrith LEP 1991 (Environmental Heritage Conservation) and the listed SEPP chapters, notwithstanding the plan’s general rule that it prevails over other local LEPs to the extent of inconsistency (cl 3(1), (3)-(4)).

Duty to consult the map and Council deposits: Clause 6 identifies a map deposited in the office of the Council and references amending maps. Users of the plan must consult those deposited maps to determine whether land is shown as excluded or deferred, and to confirm any spatial qualifications. The clause also notes that amending maps may not be listed in order of gazettal and directs users to Historical notes for that sequencing (cl 6).

Overall, duties concentrate on procedural and substantive compliance with the DCP Part 5 requirements and on checking the plan’s exclusions and preserved instruments. Rights are principally the ability to lawfully carry out exempt works without consent or to pursue the complying development route, along with the statutory suspension of private covenants for exempt development in the specified circumstances.

The plan text supplied does not itself set out new penalty provisions or create new heads of criminal or civil offence beyond what is implied by the statutory framework it operates within. Instead, enforcement and penalties will flow from the interaction between this plan and the Act and other applicable instruments.

No express penalties in the instrument: The clauses included (clauses 1-7) do not specify penalties, fines or infringement schemes. The plan sets rules about when development is exempt or complying and about the conditions that must be met (cl 7(1)-(4)). It does not itself declare offences, fines, or enforcement processes.

Enforcement through the Act and existing frameworks: Because the plan operates within the wider statutory environment established by the Act, contraventions (for example, carrying out development that is not exempt or complying without development consent) would be dealt with under the enforcement and penalty provisions of the Act and related legislation, rather than by this plan directly. Clause 3(1) expressly frames the plan’s relationship to other local environmental planning instruments, “subject to this clause and section 36 of the Act”, signalling that enforcement and other regulatory consequences are governed by the Act’s machinery (cl 3(1)). Similarly, the references in clause 7 to complying development certificates (cl 7(4)) indicate that the procedural and enforcement consequences of incorrectly claiming complying development status or failing to comply with CDC conditions fall to the Act’s certificate and compliance processes.

Role of certifiers and condition enforcement: Clause 7(4) places a requirement on the issuer of a complying development certificate to include Part 5 conditions “as in force when the certificate is issued.” Enforcement of those conditions will be via the standard compliance mechanisms for CDCs contained in the Act and in building and planning enforcement practice. Certifiers who fail to attach required conditions, or who issue certificates improperly, may be subject to administrative review or sanctions under the certifier regime in the Act and related instruments; those regimes are not restated in this plan but the plan’s requirement makes applying those regimes a necessary enforcement mechanism (cl 7(4)).

Suspension of private covenants and enforcement: Clause 4(1) suspends private agreements, covenants or similar instruments that would otherwise prohibit or restrict exempt development allowed by this plan, to the extent necessary to allow that development. That suspension affects the enforceability of private covenants through private civil remedies; affected covenant holders will find that their usual civil enforcement rights are curtailed in the circumstances specified by the plan. Clause 4(2) carves out rights of public authorities under registered instruments, which remain enforceable (cl 4(1)-(2)).

Practical enforcement consequences: In practice, enforcement will therefore be administered through:

• council compliance and enforcement under the Act for unauthorised works that fall outside the plan or do not comply with DCP Part 5 requirements;
• actions under the Act and associated regulations for defective or non-compliant CDCs; and
• the inability of private covenant-holders to enforce certain restraints where the plan permits exempt development, subject to public-authority registered instruments remaining enforceable (cl 4(1)-(2)).

Because the supplied instrument does not contain its own penalty schedules or infringement notices, practitioners should look to the Act, the certifier regime and the relevant enforcement provisions of planning and environmental statutes for the detailed penalties and enforcement routes that will apply in any non-compliance case.

The plan explicitly sets out its relationship to other environmental planning instruments and to private instruments, producing a layered legal regime where some instruments are overridden, some preserved, and some continue to operate in parallel.

Precedence over other local LEPs, subject to exceptions: Clause 3(1) provides that if there is an inconsistency between this plan and any other local environmental planning instrument or deemed environmental planning instrument, this plan shall prevail to the extent of the inconsistency, subject to clause 3 and section 36 of the Act. That creates a local precedence rule, but it is explicitly qualified by reference to the Act’s section 36 and by other exceptions contained in clause 3 itself (cl 3(1)). The clause therefore displaces inconsistent local rules but within the broader limits of state law.

Preservation of the Penrith LEP 1991 (Environmental Heritage Conservation): Clause 3(3) confirms nothing in this plan affects the application of Penrith Local Environmental Plan 1991 (Environmental Heritage Conservation) to land to which this plan applies. That means heritage conservation controls under the 1991 LEP continue to apply in parallel with the exempt/complying regime , proponents must satisfy both the plan’s DCP-based rules and any applicable heritage controls (cl 3(3)).

Certain State Environmental Planning Policies unaffected: Clause 3(4) lists four State Environmental Planning Policies and specific chapters whose application the plan does not affect: (a) State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2; (b) State Environmental Planning Policy (Resources and Energy) 2021, Chapter 3; (c) State Environmental Planning Policy (Precincts,Western Parkland City) 2021, Chapter 5; and (d) State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6. These SEPP chapters therefore remain in force and will continue to regulate development in their respective areas notwithstanding the incorporation of the DCP Part 5 exemptions (cl 3(4)(a)-(d)). This produces a layered compliance requirement: proponents must watch for applicable SEPP chapters as well as the plan’s DCP criteria.

Interaction with threatened species, heritage and other statutory protection laws via exclusions: Clause 2(2) lists many categories of land that the plan does not apply to, and those categories reference other statutes such as the Threatened Species Conservation Act 1995, Wilderness Act 1987, National Parks and Wildlife Act 1974, Fisheries Management Act 1994, Crown Land Management Act 2016, and the Heritage Act 1977. Where land falls within those categories, those separate statutory regimes will direct what development is permissible and the plan’s exemptions/complying pathways will not be available (cl 2(2)(a)-(l)). This is an explicit cross-reference to other law that takes precedence in those subject-matter areas.

Suspension of private covenants, but preservation of registered public authority rights: Clause 4(1) suspends private agreements, covenants and similar instruments to the extent necessary to allow exempt development permitted by this plan. That changes the private law enforcement landscape: where a private covenant would prevent an exempt development that is permissible under the plan, that private covenant does not apply to the extent necessary. Clause 4(2) preserves rights or interests of any public authority under any registered instrument, so registered public interests continue to bind. The plan therefore operates to displace private contractual restraints in specified circumstances while leaving public-registered interests intact (cl 4(1)-(2)).

DCP incorporation and time-sensitivity: Clause 7 repeatedly refers to Part 5 of the Penrith DCP 2006 “as adopted by the Council on 21 August 2006” when listing exempt and complying development (cl 7(1)-(3)). However, clause 7(4) requires a complying development certificate to be subject to the conditions for the development specified in Part 5 “as in force when the certificate is issued.” That language creates an interaction between a fixed incorporation point (the DCP as adopted on 21 August 2006) and a dynamic application of conditions at the time of certificate issue. Practitioners must therefore reconcile which lists are incorporated as authorised categories and which conditions are operative at the time of certification (cl 7(1)-(4)).

Administrative and procedural interaction via the map and Council records: Clause 6 defines the map and notes that amending maps are deposited in the office of the Council. The editorial note warns amending maps may not be listed in order and suggests checking Historical notes to determine ordering. This produces a procedural interaction with administrative records and gazettal sequencing; users must consult the Council-held map suite and historical notes to determine spatial applicability and any deferred/excluded zones (cl 6).

Overall, the plan is not a stand-alone code; it expressly preserves certain heritage and SEPP instruments, excludes particular environmentally and culturally sensitive land from its scope, suspends private covenants in narrow circumstances while protecting public registered rights, and incorporates DCP material with an embedded temporal tension between the adopted list and conditions “in force” at the time of certificate issue (cl 3; cl 2; cl 4; cl 6; cl 7).

The instrument as supplied contains amendment annotations in the clause footnotes that record specific amendment entries. Those notes are the only amendment record present in the text supplied.

Clause 2 amendment notes: Clause 2 carries the editorial note: “cl 2: Am 2019 (621), Sch 2.13; 2022 (72), Sch 1.39[1]; 2022 (629), Sch 3.6[1].” This indicates clause 2 was amended in 2019 and twice in 2022, with precise references to the amending instruments and schedules, as recorded in the clause note. The clause itself as printed in the instrument states the plan applies to all land within the City of Penrith and lists the exclusions at clause 2(2)(a)-(m).

Clause 3 amendment notes: Clause 3 carries the note: “cl 3: Am 2007 (641), Sch 5.31; 2012 (57), Sch 2.3; 2016 (310), Sch 4.18 [1] [2]; 2022 (72), Sch 1.39[2]; 2022 (629), Sch 3.6[2].” This shows clause 3 has been amended several times (2007, 2012, 2016, 2022 twice) and the note records those amending instruments by year and schedule references.

Clause 6 amendment note: Clause 6 carries the note “cl 6: Am 1.3.2002.” That indicates clause 6 was amended on 1 March 2002.

Clause 7 amendment notes: Clause 7 carries the note “cl 7: Am 26.11.2001; 29.10.2004; 2006 (755), Sch 2 [1]-[3].” That indicates amendments in 2001 and 2004 and an amendment recorded in 2006 with schedule references.

Editorial note on maps: Clause 6 contains an editorial note that the amending maps are not necessarily listed in order of gazettal and that users should refer to the Historical notes at the end of the plan to determine the order of gazettal. This note signals that the map record has been updated by amending maps over time and that ordering matters for interpretation.

No consolidated chronological narrative in the instrument: The supplied text does not provide a consolidated narrative of how the plan has changed over time beyond the clause-specific amendment references and the editorial note about maps. The precise textual effect of each amendment is not set out in the supplied text beyond the clause notes and the current consolidated clause wording. Users wishing to understand the precise prior versions and what each amendment altered will need to consult the referenced amending instruments (for example, the schedules cited) and the Historical notes or gazette records referenced in clause 6.

Practical implication for advisers: The amendment notes indicate multiple points in time when the plan’s territorial reach, relationships to other instruments, definitions, or substantive clauses were changed. Practitioners should consult the amending instruments cited in the clause notes if they need to trace the statutory history or to understand how the wording arrived at its current form. The plan text as supplied is the operative consolidated text, and the clause amendment notes identify the legislative instruments that effected earlier changes.

The supplied instrument text does not record any litigation history. The plan’s clauses and editorial notes do not mention any judicial decisions, appeals, or other litigation that interpret or challenge the provisions. The text also does not cite any cases.

Implication: There are no reported judicial interpretations within the instrument itself to guide how courts have treated the plan’s provisions, including the suspension of private covenants in clause 4, the interaction with other instruments in clause 3, or the incorporation/application of Part 5 of the DCP in clause 7. Practitioners seeking precedential guidance on contested points (for example, disputes about the scope of the clause 4 suspension, the meaning of “as in force when the certificate is issued” in clause 7(4), or the scope of exclusions in clause 2(2)) would therefore need to search external case law databases and administrative decisions; none of that material is included in this plan text.

Standard cautions: Because the plan interacts closely with other statutory instruments (the Act, State Environmental Planning Policies, the Heritage Act, and other environment-related statutes referenced in clause 2(2)), litigation records relevant to the operation of this plan are likely to be dispersed across judicial decisions interpreting those other instruments as well as decisions about local exemptions and complying development. None of those decisions are referenced in the supplied plan text.

This plan includes several textual and operational features that commonly give rise to practitioner errors or misapplication if not attended to carefully. These are concrete, source-based points drawn from the plan’s clauses.

Exclusions are broad and specific: Clause 2(2) excludes a wide set of land types from the plan’s operation, including critical habitat and threatened species areas, recovery or threat abatement plan lands, wilderness areas, Aboriginal relic/area land, items listed in the Register of the National Estate or its interim list, land dedicated under National Parks and Wildlife Act 1974, aquatic reserves, Crown land reserved for flora/fauna preservation, land that is or adjoins the Hawkesbury-Nepean River, a set of biodiversity or coastal designations under specified SEPP chapters, items of environmental heritage identified by an environmental planning instrument, land subject to a Heritage Act order, and land shown as “EXCLUDED LAND” or “DEFERRED MATTER” on the plan map (cl 2(2)(a)-(m)). Failure to spot any of these categories will nullify the plan’s exemptions for that site (cl 2(2)).

Map-driven exclusions and deferred matters: Clause 6 identifies a deposited map and amending maps in the Council office, and clause 2(2)(m) permits map-identified exclusions. The editorial note warns amending maps may not be listed in order of gazettal, so users must inspect the Council-deposited map and Historical notes to determine whether a parcel is excluded or deferred. Relying on an outdated map copy is a common pitfall (cl 6; cl 2(2)(m)).

Private covenant suspension is limited: Clause 4(1) suspends agreements, covenants and similar instruments that would otherwise prohibit or restrict exempt development allowed by this plan “to the extent necessary”, but clause 4(2) preserves the rights or interests of any public authority under any registered instrument. Practitioners often misinterpret the suspension as absolute; the text is limited in scope and does not affect registered public authority interests (cl 4(1)-(2)).

Temporal tension in DCP incorporation and certifier conditions: Clause 7 repeatedly references Part 5 of the Council-adopted DCP on 21 August 2006 as the source of exempt and complying listings (cl 7(1)-(3)), but clause 7(4) requires a complying development certificate to carry the Part 5 conditions “as in force when the certificate is issued.” This creates a potential interpretive uncertainty: which version of Part 5 controls the list of authorised items (the adopted 2006 version) and which controls the conditions (the version current at certificate issue)? The instrument’s text suggests the listing is tied to the 2006 adoption (cl 7(1)-(3)) while conditions are dynamic (cl 7(4)). Practitioners should therefore verify both the adopted Part 5 list and any subsequent Part 5 updates or amending material that affect conditions at the time of CDC issuance.

Complying development qualification requires that the development be a type that could be carried out with consent on the land: Clause 7(2)(a) requires the complying development be local development of a kind that could be carried out with consent on the land. A mistaken assumption that every item listed as complying in Part 5 is automatically available on any lot can be incorrect if the land-use zoning or permitted uses on the lot would not otherwise permit the development with consent (cl 7(2)(a)). Practitioners must confirm both the listing and the land’s lawful permissibility.

Existing use exclusion: Clause 7(2)(b) disqualifies “existing use” as defined in section 106 of the Act from the complying development pathway. Users must ask whether the project continues an existing use as that statutory term is defined by the Act; the plan does not define the term and so the Act’s statutory definition controls (cl 7(2)(b)).

Heritage and SEPPs continue to apply: Clause 3(3) preserves Penrith LEP 1991 (Environmental Heritage Conservation) and clause 3(4) preserves the application of four named State Environmental Planning Policies. Assuming the plan displaces all other controls will be an error , heritage controls and those SEPP chapters must be respected and may prevent the exercise of an exempt/compliant pathway (cl 3(3)-(4)).

Certifiers must apply the conditions in force at CDC issue: Clause 7(4) is explicit that the conditions to which a CDC is to be subject are those specified in Part 5 “as in force when the certificate is issued.” That requires certifiers to check the operative version of Part 5 conditions at the issuing time (cl 7(4)). Failing to do so can render the certificate defective or expose the certifier to review.

Governor’s approval for covenant suspension: Clause 4(3) records that the Governor approved subclauses (1) and (2) in accordance with section 28 of the Act before the plan was made. That is a formal precondition recorded in the instrument and may be relevant to challenges to the covenant-suspension mechanism (cl 4(3)).

No penalties printed in the plan: The plan does not set out its own penalties or enforcement rules; enforcement depends on the Act and other statutory regimes. Practitioners should not look for an internal penalty schedule in this plan (clauses 1-7).

Overall, these “gotchas” derive directly from the plan’s wording and the incorporated DCP reference points. The principal practical traps are ignoring the exclusions, misreading the map, misunderstanding the covenant suspension limits, misapplying the DCP lists and conditions across versions, and not confirming that a proposed complying development is both listed and permissible with consent on the specific lot.

Compliance with this plan requires careful, document-based steps tied to the plan’s textual triggers: land eligibility, DCP Part 5 listing and standards, and certifier requirements. The following is a procedural checklist grounded in the plan’s clauses.

1. Confirm geographic applicability and map status

• Verify the land is within the City of Penrith (cl 2(1)).
• Inspect the Council-deposited plan map and any amending maps in the Council office to confirm the parcel is not shown as “EXCLUDED LAND” or “DEFERRED MATTER” (cl 6; cl 2(2)(m)). Consult the Historical notes for correct gazettal ordering if the map history is relevant (cl 6 editorial note).

2. Check for statutory exclusions

• Review clause 2(2) categories point-by-point to ensure the land is not excluded due to being critical habitat, subject to a recovery or threat abatement plan, wilderness area, Aboriginal relic/area, listed on the Register of the National Estate, dedicated under National Parks and Wildlife Act, an aquatic reserve, Crown land reserved for preservation, adjoining the Hawkesbury-Nepean River, identified as coastal wetlands under the specified map and SEPP, identified as an item of environmental heritage under an EPi, subject to a Heritage Act order, or otherwise shown on the map as excluded (cl 2(2)(a)-(m)). If the land falls within any of these categories, do not rely on the plan’s exemptions.

3. Identify whether the proposed works are listed as exempt or complying development in Part 5 of the Penrith DCP 2006

• Obtain the Part 5 (Exempt and Complying Development) text as adopted by the Council on 21 August 2006, which is the listing source cited in clause 7(1)-(3).
• Confirm the proposed work appears in the Part 5 listings as either exempt or complying development and that any cross-referenced definitions within the DCP are satisfied (cl 7(1)-(2)).

4. For complying development, satisfy statutory qualification tests

• Establish that the development is a type of local development that could be carried out with consent on the particular land (cl 7(2)(a)). This requires checking local zoning and permitted uses.
• Confirm the development is not an “existing use” as defined in section 106 of the Act (cl 7(2)(b)). If the project continues or is tied to an existing use, the complying development pathway will not be available.

5. Ensure full compliance with Part 5 development standards and other requirements

• Confirm the proposal meets all development standards, dimensional limits, siting, materials, environmental controls and other requirements specified for that item in Part 5 of the DCP (cl 7(3)). Non-compliance with these standards defeats the exempt or complying status.

6. For complying development, plan for the certificate conditions at issuance

• Remember clause 7(4) requires that a complying development certificate, when issued, be subject to the conditions specified in Part 5 “as in force when the certificate is issued.” Identify the version of the Part 5 conditions that are current at the expected date of CDC issuance and ensure the certificate application and construction documentation will meet those conditions (cl 7(4)).

7. Check heritage and SEPP constraints

• Because clause 3(3) preserves the application of Penrith LEP 1991 (Environmental Heritage Conservation) and clause 3(4) preserves the application of specified SEPP chapters, confirm whether heritage or SEPP rules apply to the site and whether they affect the permissibility of the proposed works (cl 3(3)-(4)). If they do, those rules must be satisfied in addition to the DCP Part 5 requirements.

8. Assess private covenants and registered instruments

• If a private covenant or similar agreement would otherwise prohibit or restrict exempt development, clause 4(1) suspends such private instruments to the extent necessary to allow the exempt development (cl 4(1)). However, clause 4(2) preserves rights or interests of public authorities under any registered instrument; those remain operative (cl 4(2)). Advise clients on the practical effect: private covenant enforcement may be limited, but public-registered rights and statutory protections are not affected.

9. Document compliance and retain up-to-date copies

• Keep a contemporaneous file showing: the parcel search and map evidence from the Council office, the version of Part 5 consulted (including the 21 August 2006 adopted text and any relevant amendments), zoning/permitted uses evidence for the land, the assessment of whether the development is or is not an existing use under s106 of the Act, and the conditions current at time of CDC application. Because clause 6 ties the map to Council deposits and notes amending maps, retain those map copies and any historical notes (cl 6).

10. Engage the appropriate certifier and confirm condition application

• For complying development, ensure a certifier who will issue the CDC is satisfied the proposal meets the DCP Part 5 standards and that the certifier will attach the Part 5 conditions “as in force when the certificate is issued” (cl 7(4)). For exempt development, ensure the works are strictly within the Part 5 exempt list and meet its requirements so that no development consent is required (cl 7(1), (3)).

11. If in doubt, seek advice or a formal determination

• Where uncertain about exclusions, the status of an “existing use,” the interaction with heritage controls or SEPP chapters, or the applicable version of Part 5 conditions, obtain legal or planning advice, or seek a formal clarification from Council or the relevant certifier. The plan’s multiple cross-references and temporal language (for example the DCP as adopted vs. conditions as in force) make on-the-record clarification prudent (cl 7(1)-(4); cl 3(3)-(4); cl 6).

Following these steps aligns practical project assessment with the plan’s textual requirements and minimises the risk of executing works in breach of the Act or other preserved instruments.