This Plan contains multiple provisions that can create traps for the unwary applicant or adviser. The following are concrete attention points, grounded in the Plan text.
Savings for pre‑commencement applications. Clause 1.8A requires that any development application lodged before the Plan’s commencement and not finally determined must be decided as if the Plan had not commenced. That means the timing of application lodgement and final determination is legally significant. The Plan’s note flags Division 3.5 of the Act as a related pathway where a draft instrument may be considered with an application.
Suspension of covenants with exceptions. Clause 1.9A allows private agreements or covenants that restrict development to be suspended to the extent necessary to enable development in accordance with the Plan, but it expressly excludes covenants imposed by the Council, certain Crown and conservation instruments, property vegetation plans, biobanking agreements, and planning agreements (cl 1.9A(2)). The clause also preserves the rights of public authorities under registered instruments (cl 1.9A(3)). Practitioners must check whether a restrictive instrument is one of the excluded categories before relying on cl 1.9A.
Environmentally sensitive areas and exempt/comlying development. Exempt and complying development are prohibited in “environmentally sensitive areas for exempt or complying development” (cl 3.3(1)-(2)) which include coastal waters, Ramsar wetlands, World Heritage areas, land identified as having high Aboriginal cultural or biodiversity significance, and land reserved under the National Parks and Wildlife Act (cl 3.3(2)). A superficially qualifying exempt project can be disqualified by proximity to these mapped areas.
Subdivision traps in relation to secondary dwellings. Clause 2.6(2) says consent must not be granted for subdivision that would result in the principal dwelling and secondary dwelling being on separate lots unless the resulting lots meet minimum sizes on the Lot Size Map. This interacts with the definition of secondary dwelling in the Dictionary, and can defeat intended retrospective subdivision unless lot sizes comply.
Limited flexibility for several rural subdivision outcomes. Clause 4.6 allows contravention of development standards in some circumstances, but cl 4.6(6) bars use of that mechanism to authorise subdivisions in certain rural, environmental and large lot zones that would produce two or more lots below the minimum area or any lot below 90% of the required area. This is a hard constraint on negotiation via the “exceptions” mechanism.
Heritage consultation timing. Where the Plan requires notification to the Heritage Council or local Aboriginal communities, a 28 day period for responses applies (cl 5.10(7)-(9)). If the applicant or consent authority neglects these notifications, procedural validity can be challenged.
Music and licensed premises. Clause 5.20 removes certain grounds for refusal of development in relation to licensed premises dealing with music and performance, but it conditions non‑refusal on the consent authority being satisfied noise can be managed and minimised to an acceptable level (cl 5.20(2)). Applicants should expect noise management plans and evidence that controls can deliver acceptable outcomes.
Aquaculture operational constraints and exclusions. Clause 5.19 and Schedule 6 contain specific species, pond design and discharge rules. For intensive pond systems, discharge to natural waterbodies is generally prohibited except for open flow through systems, outlets must be screened and ponds must be capable of being drained and dried (Sch 6, Div 2). Priority oyster aquaculture areas may allow oyster cultivation without consent, but only within mapped priority areas or where any land outside the area is no more than 0.1 hectare (cl 5.19(6)). Practitioners must cross‑check the Plan with aquaculture industry development plans and the NSW Oyster Industry Strategy.
Maps drive outcomes and can be amended. Many constraints are map‑based: Lot Size Map (minimum lot sizes, cl 4.1), Height of Buildings Map (cl 4.3), Heritage Map (Schedule 5), and Land Reservation Acquisition Map (cl 5.1). Changes to these maps alter rights; the Plan contemplates amendment by environmental planning instruments approved by the local plan‑making authority (cl 1.7). Check current consolidated maps before advising.
Exempt development is not free of other statutory approvals. Schedule 2 Note 2 states exempt development remains subject to approvals required by other Acts and to common law property rights. An exempt building action can still need a licence under fisheries, heritage permits, building certifications or other approvals.
Thresholds and location limits for intensive livestock agriculture. Clause 5.18 contains capacity thresholds beneath which certain intensive livestock developments may proceed without consent, but they are subject to restrictive locational constraints such as minimum distances from dwellings and watercourses and exclusions for environmentally sensitive areas (cl 5.18(4)-(5)). Those locational limits can be overlooked by inexperienced applicants.
Record keeping and discretionary process. When the consent authority exercises discretion to contravene standards it must keep a record of its assessment (cl 4.6(4)). Applicants and advisers should prepare robust evidence because the authority must document its reasoning, which can be the subject of review.
In short, the Plan contains a dense mixture of mapped standards, use‑specific rules, non‑derogable exclusions and procedural steps that can have decisive effects. Practitioners should check maps, Heritage Schedule entries, the Lot Size Map, and the Plan’s cross‑references to other Acts early in project planning.