In brief – developers and landowners can request independent review of council rezoning decisions
From 2 November 2012, if you are a developer or landowner and you have made a request for rezoning to council, you now have the right to request a review of council's decision at an independent level. Two review mechanisms have been introduced, known as "pre-gateway reviews" and "post-gateway reviews".
The changes are a significant step forward and will introduce more transparency and accountability in the rezoning process in NSW. Councils also now have powers to make some LEPs.
Reviews of proposed amendments to LEPs
If you are a developer or landowner and you have requested that council prepares a planning proposal for amending a LEP, you may ask for a review if:
- Council has notified you that your request is not supported. Councils are now required to notify you when they have determined this. You then have 40 days to make an application for review.
- Council has failed to indicate its support for your request 90 days after you have submitted the request. You may then make an application for review any time after the 90 days has elapsed.
How do you request a review of a planning proposal for amending a LEP?
A review application will be required to be made in writing to the NSW Department of Planning and Infrastructure (DoP). DoP will then undertake an assessment as to whether the review application has "strategic merit" or has "site-specific merit and is compatible with surrounding land uses" based on certain criteria set out in A guide to preparing local environmental plans, an online publication issued by DoP.
If your planning proposal meets the relevant criteria, it will be referred on to a Joint Regional Planning Panel (JRPP) or the Planning Assessment Commission (PAC). The JRPP or PAC will advise on whether it recommends to the Minister that the proposed LEP should proceed to a gateway determination. The Minister's final decision on the matter is based on the JRPP or PAC's advice.
For planning proposals submitted prior to November 2012, you may seek a review if the supporting documentation for your planning proposal is still current, but the request will generally need to be less than two years old to be considered.
Gateway reviews of proposed amendments to LEPs
If you are a council, developer or landowner and a gateway decision has been made in relation to a proposed LEP that you are not happy with, you may request that the Minister alters that determination when a decision is made that:
- it should not proceed. You have 40 days after notification by DoP to request a review; or
- it should be resubmitted. You have 40 days after notification by DoP to request a review; or
- requirements are imposed or variations are made that you think should be reconsidered. You have 14 days from being notified to indicate your intent to request a review, and then 40 days to apply formally for a gateway review.
These reviews only apply to original determinations made by a delegate of the Minister (and not councils).
Powers given to councils to amend certain types of LEPs
The making of some LEPs will now be delegated to councils, including LEPs which make mapping alterations, reclassifications of land, amendments to specific heritage items and spot rezoning consistent with an endorsed strategy and/or surrounding zones, and other matters of local significance. In turn, councils will be required to report to DoP on processing times for making those delegated LEPs.
Positive changes for developers and landowners
Overall, we expect that the removal of multiple stages in the making of some LEPs, and the right for developers or landowners to request a review of rezoning decisions, is a significant step forward in providing more certainty and transparency for development in NSW.
Please do not hesitate to contact us if you are interested in attending a Sydney seminar about LEPs.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.