Planning Laws in Australia

This document provides an overview of the planning laws in Australia, focusing on the statutory land use planning before 1979, delegated legislation, planning and development control, and potential areas for reform. It discusses the Environmental Planning and Assessment Act, State Environmental Planning Policies, Local Environment Plans, and the role of the Commonwealth in environmental development. The document also highlights the importance of environmental assessment and the Environment Protection and Biodiversity Conservation Act.

Running head: Planning Laws in Australia
Submission 50
Dr. Peter Lewis
Faculty of Law
Queensland University of Technology
6 September 2019
Foreign Affairs, Defence and Trade Committee
Department of the Senate
Parliament House
Canberra ACT 2600
[e-mail]
Dear Committee Secretary,
PHASE 1
STATUTORY LAND USE PLANNING BEFORE 1979
The planning framework was introduced in the New South Wales in the year 1945 through
the Local Government Act of 1919 and the Local Government (Town and Country Planning)
Amendment Act of 1945. The Acts gave way to a more systematic and formal development

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approach. The Town and Country Planning Schemes (Part XXXIIA) gave authority to
councils to conduct the preparation of town planning schemes for the control of development
within their municipality. The Planning and Environment Commission Act’s enactment
occurred in 1974. In 1979, the Environmental Planning and Assessment Act was enacted.
Environmental Planning and Assessment Bill of 1979
The core purpose of the Bill is to create a legislative decision-making framework for the
environmental planning. Its objective is the satisfaction of the State’s current and future needs
for planned economic growth as well as social environmental enhancement. The Bill
established the Environment and Planning Department with the responsibility of
environmental study and its assessment and its appraisal within and without the planning
process. This Bill was complemented by the Land and Environment Court Bill (clauses 97
and 98).
Another object of the Bill is the division of responsibility for the government with regards to
environmental planning. Part 111 gives authority to the local government to formulate plans
for local environment. This includes developing and initiating plans and policies which have
significance for the State or region. It has been 30 years since the local government
commenced town planning legislation, and the Government is working to for its independent
responsibility when it comes to decisions of local planning.
DELEGATED LEGISLATION
This may also be referred to as subordinate legislation. It is the legislation which is made
through the reliance of an Act of Parliament’s authority. Statutory rules, ordinances, by-laws
council orders and other instruments of the executive form part of delegated legislation. The

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delegation of legislative role enables the Parliament to easily debate about fundamental
matters of principle and policy.
It is the responsibility of the Parliamentary Counsel to draft regulations, proclamations,
statutory rules as well as instruments of environmental planning following the instructions
given by the concerned agencies. It also provides advice to the agencies on legality and
legitimacy of the delegated legislation. It cautions agencies against preparing their own
delegated legislation drafts.
Activities of planning and zoning occur with guidance and advice from wide strategic
planning policies from the state. There is the existence of a planning instrument hierarchy for
the facilitation of consistent outcomes for land use and planning. State planning departments
apply instruments that are based on principle.
Regulatory instruments put focus and emphasis on new development. They place restrictions
on development types which require consent authorities in order to consider certain measures
for the assessment of development. Zones and overlays are instruments that are spatially
based and they set objectives for proper land use in a certain area. Strategic planning shifts
the planning culture from ad hoc decision-making. Where a proposal requires assessment, its
evaluation occurs against common values and shared interests. It is the consensual outlook of
the future which binds strategic planning. The Great Sydney Commission is a regional body
which operates between the state and local government level. It is the commission which
oversees strategic planning. The Great Sydney Commission Act provides its objectives which
include metropolitan planning for the region and promotion of Government decision-making
for infrastructure for land use planning.1
State Environmental Planning Policies (SEPPs)2
1 Section 9
2 Division 3.3

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The Minister has to put into consideration the fact that SEPP is warranted due to its
significance on environmental planning matters of the state or the region generally.
Consultation is required with reliance on Ministerial discretion. SEPPs are presented to the
public in a draft form before they become legally binding documents. They apply to the
whole state geographically. They allow some development types which are otherwise
prohibited. Zoning may be used for the control and regulation of development.
Local Environment Plans (LEP)
These refer to legal instruments which zone land, impose standards of controlling
development or implement an outcome of the state or local policy. They apply to a specific
area, a local government area in its entirety or partially. An LEP which applies to a local
government area in its entirety is known as principal LEP. Most of such plans remain
enforceable until their amendment or repeal by another LEP. Principle LEPS are made in a
form that is standard and as prescribed by the Standard Instrument Order of 2006. The LEPS
divide into zones the geographic area, that is, industrial, rural, open space, residential,
business and environment protection zones. All the zones rely on a list of objectives that
indicates the use that is intended for the zone. The list also provides the development types
that are permissible in the given area, that is, permissible with consent or permissible without
consent or one that is prohibited.
There are certain steps which need to be followed for the successful making of LEPs. Firstly,
a planning proposal needs to be prepared. This includes objects of the LEP, its desired effects
and justifications. Another step is gateway determination whereby the Minister sets out
whether or not to proceed and the conditions or considerations. The final step is definitely the
making of the LEP. The Planning Proposal Authority is tasked with preparing a document
which explains the effect that is intended by the proposed instrument and provides the

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justification for the making of the proposed instrument. There is also the requirement or
community consultation.3
Gateway determination determines whether or not the planning proposal ought to proceed
and the conditions necessary for such progress. It also ensures that there is sufficient
justification in order to proceed with the planning proposal.4 It will look into the requirement
for public consultation, any State or Federal consultation of public authorities, whether or not
there is the requirement for a public hearing, the timeframe for completing the process and
the environmental conditions.
The Minister determines community consultation at the gateway stage. This consultation may
be waived in various circumstances. General advertisement takes place for public
submissions and this may later vary without having to involve in further consultation.
Planning proposal has to be availed during the consultation period. Anyone is allowed to
make a submission during such period. The Planning Authority may choose whether or not to
avail the submissions to the public.
Under the current system, there is no mandatory assessment of the environment for new LEPs
or the spotting of re-zoning. It is not possible to challenge an LEP on its merits, say filing an
appeal on the basis of the LEP representing poor planning decision or causing harm to the
environment. A potential ground for review is the absence of proper procedures when the
LEP was made though it is a difficult ground to rely on because of the broad discretion that is
allowed.
Shoalhaven Local Environmental Plan of 2014; this plan was aimed at making
provisions for local environmental planning for the land in Shoalhaven according to the
3
Ryan v Minister for Planning (2015)
4 EPA Act, s 56 (2)

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relevant instrument of standard environmental planning.5 The specific aims of the Plan are to
encourage proper conservation, development and management of man-made and natural
resources, the facilitation of economic and social wellbeing of members of the community,
ensuring the availability of suitable land for appropriate and beneficial uses and managing
essential and appropriate public services, amenities and infrastructure for Shoalhaven.
PHASE 2
PLANNING AND DEVELOPMENT CONTROL
A development project has to be approved by a public authority. It operates with a flexibility
degree. The complete prohibition of a development project is very rare. Approvals take place
through the setting up of standards at the point of the project’s inception (development
consent) and the setting up of conditions which are necessary for the regulation of the project
until it is completed. The requirement of development consent is based on running of the EPI
which is relevant. If there is the requirement of consent, then the provisions of the EPA Act
under Part 4 are triggered.
An EPI can amend a previous EPI’s provisions either expressly or impliedly. Factors that are
put into consideration include whether the projects amounts to development and whether the
use of land requires development consent for the project to proceed.
Exempt development does not require development consent6 neither does it require a
council’s approval or private certifier. It must however meet the land requirements as well as
the set minimum standards.7 An exempt development applies to the project’s specification
and description across the New South Wales irrespective of the geographical implications.
5 s 33A Interpretation Act 1987
6 EPA Act, s. 4
7
Building Code of Australia

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Exempt development places its focus on minor development projects which include carports,
air conditioning units, cabanas, cubby houses, greenhouse and balconies, patios, decks.
Exempt development must have minimal impact on the environment. It cannot be conducted
in a critical environment having endangered species and in an area of wilderness.
Concept development applications may be complemented by a single application of detailed
development in order to have only one stage of development. The consent authority is not a
requirement for the consideration of the impacts of conducting the development at the stage
of the concept for example impacts that are construction-related. This is if the development
should be subjected to a subsequent application of detailed development.
Complying development is the development which requires consent. This development is
provided for specifically under a complying development code and it has to meet the specific
set standards as well as adhere to the requirements of the Division. Complying development
may be carried out by someone who has a certificate of complying development and the
carrying out of the development is consistent with the certificate and any other provisions of
an instrument of environment planning. Complying development requires one to submit a
development application and public notification may be required as well as consultation with
the Minister or any other relevant person.
Designated development is a high impact development which impacts the environment or
areas that are environmentally sensitive.8 This type of development must go together with the
Environmental Impact Statement. Public notification is a requirement and it must be
subjected to a merits review by the court of Land and Environment. It includes livestock
intensive industries, marine, aircraft facilities, extractive industries and coal mining
8 EPAR, Schedule 3

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operations. It is based on the proximity and size of the areas that are environmentally
sensitive.
In order to appeal against a decision, the applicant must request the Council to review the
determination within an allowance of 28 days. Such action of judicial review can be brought
by any person. Grounds of appeal include amenity 9(heritage of zone), development
conditions or standards,10 development consent modification11 and having consideration to the
social impacts.
Environmental assessment
This refers to information tool which offers assistance to decision makers so that they can
fulfil some of their objectives as stipulated by the EP&A Act. It refers to systematic process
of evaluating and examining the environmental effects that the proposed activities have and
which can have significant impacts on the environment. EIA should comprise possible
alternatives which may include avoidance, auditing and monitoring requirement that
determines compliance with the conditions.
Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act)
The commencement of the Act occurred on 16 July 2000. It significantly extends federal
powers that relate to environmental protection. The Act provides statutory basis for wider
federal involvement in decision-making on environmental planning and matters concerning
national environmental significance.
The relevant areas of development assessment include the protection of the environment.12
The Minister has the basis of deciding whether to proceed with an action that has the
9
Chrisholm v Ku-ring-gai Council (2019) NSWLEC 1062
10
AS Investment Company Pty Ltd v Liverpool City Council (2019) NSWLEC 1054
11
Progress East Pty Ltd v Randwick City Council (2019) NSWLEC 1029
12 EPBC Act, Chapter 2

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potential of a significant environmental impact. This is actualised through the prohibition of
someone against taking an action with the absence of the Minister’s approval or if he or she
decided that the approval was not necessary. Another relevant area is bilateral agreements.13
This Part offers the object of providing for agreements between a self-governing Territory or
a State and the Commonwealth for the protection of the environment, promotion of the
conservation and ecological sustainability of natural resources, ensuring an effective, timely
and efficient process for assessing the environment and action approvals and minimising the
duplication within the assessment of the environment and the approval process via process
accreditation by the Commonwealth of the Territory or State.
A controlled action is one which a person takes without having to be approved under Part 9.
The provision controls the action. It includes a development, an activity or activities, an
undertaking, a project or alteration of such things. Such an action has a high probability of
significantly impacting on matters that have national environmental significance.14 A
controlled action must be referred to the Minister of the Environment so that it be assessed
and approved before the beginning of the activity.
The Minister makes decisions on the basis of relevant impacts that the proposed action has.
This impact is on every matter that has significance on the national environment. The
Minister relies on public comments and comments or advice that comes from other Ministers.
The Minister decides whether or not to grant the approval and the approval must have
consistency with the international obligations such as international conventions as well as
other plans.15 Conditions required may include the necessity to accomplish potential repairs
of the site, a person’s financial contribution or a group which seeks which seeks to protect
13 EPBC Act, Chapter 3
14 ss 12-24A, EPBCA
15 ss 136-140, EPBCA

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matters of the environment that have national significance. The approval is attached to the
person and not the land. Such an approval can be transferred to other people with consent.
PHASE 3
POTENTIAL AREAS FOR REFORM
Reform of Federal environment development or planning laws; the Commonwealth
should assume the responsibility of Commonwealth Strategic Environmental Instruments
(CSEIs) for the purposes of environmental development. The next generation of
Commonwealth legislation should include legislative arrangements to complement the
leadership of the Commonwealth in environmental matters. These may include legislative
schemes which complement the already existing legislative mechanisms for example through
legislation that is uniform which are likely to result to favourable environmental outcomes
through the apportionment of roles and responsibilities among the States and the
Commonwealth. There may also be the operation of a legislative scheme that is overlapping
with relation to the assessment of the environment and the approval of the activities which
may have a significant impact on national environmental significance matters.
The Commonwealth should maintain its involvement in the activities of assessment and
approval which may have a significant impact on national environmental significance matters
as well as corresponding State processes. There are reforms to the existing process which
may be adopted and these include; giving consideration to all impacts on the environment
which are related with the activity that has been proposed, expansion of the existing list of
matters that have significance on the national environment, the transfer of the key decision-
making responsibility from the Minister to a Commonwealth environment authority that is
new and independent, the removal of the operations exemption as provided for by an

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agreement of a regional forestry and the termination of the exclusion of the activities of
offshore petroleum from the process of the EPBC Act.
The Commonwealth environmental legislation in its next generation should provide an
assessment of the Commonwealth environment and the process of approval that provides for
the following measures:
 A mandatory requirement of conducting a public inquiry into the Commonwealth’s
full EIS. This inquiry should be carried out by a panel of commissioners which is
appointed from a wide group of experts that is specifically tasked with such a
purpose.
 Accessing independent expertise availed to selected community representatives in
order to offer them assistance for the presentations of submissions to a public inquiry
that is EIS-related.
 A mandatory requirement of undertaking monitoring and reports on the impacts on
the environment by the approved projects. There should also be an approach of
adaptive management to provide for the revision of attached to a project in order to
address any impacts that may be unforeseen by such reporting and monitoring; and
 The auditing of managed EISs of previous Commonwealth to be conducted by a
Commonwealth environment that is newly-established for the provision of a
contemporary evaluation of impact predictions that may be relied upon.
Changes to the Environmental Planning and Assessment Act of 1979 (NSW);
various changes to the Act are to witness their implementation in the year 2018 in its first
half. These review processes include:
Environmental Planning and Assessment Bill of 2017; the Bill was assented by the
Parliament of NSW on 23 November for the approval of the changes. The Bill awaits

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proclamation. Because of the many amendments to the Act, there will be an approach which
introduces the changes allowing a transition that is well informed to the stakeholders’
requirements and new measures. The main purpose of amending the Act has been for the
promotion of confidence in the planning system of the state.
Review of the Land and Environment Court Act (NSW); the court is considered
generally to have performed fairly well as to the expectations conferred on it. The court was
recently subjected to a former Chief Justice’s external review and this review endorsed the
court’s work largely. However, such a review seems to lack a coherent image, more so
amongst developers, environmental groups and the local authorities. A more stable
foundation can be laid for the Court if the different perspectives that concern its role in
environmental planning and significance can be confronted.16
Yours sincerely,
Dr. Peter Lewis
Senior Lecturer, Faculty of Law
Queensland University of Technology (QUT)
Brisbane, Australia
16 Patricia, R. (2002). Court of Hope and False Expectations: Land and Environment Court 21 years on.
Journal
of Environmental Law. Oxford University Press. Vol. 14, No.3 pp301-315.

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References
AS Investment Company Pty Ltd v Liverpool City Council (2019) NSWLEC 1054.
Building Code of Australia.
Chrisholm v Ku-ring-gai Council (2019) NSWLEC 1062.
Local Government Act 1919.
Local Government (Town and Country Planning) Amendment Act 1945.
Environmental Planning and Assessment Act 1979.
Environment Protection and Biodiversity Conservation Act 1999.
Interpretation Act 1987.
Patricia, R. (2002). Court of Hope and False Expectations: Land and Environment Court 21
years on. Journal of Environmental Law. Oxford University Press. Vol. 14, No.3 pp301-315.
Progress East Pty Ltd v Randwick City Council (2019) NSWLEC 1029.
Ryan v Minister for Planning (2015).

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