What Can I Do With My Property?

SHAY RILEY-LEWIS Property and Planning Lawyer Jenkins Legal & Advisory

Shay is a property lawyer and qualified environmental planner with over 23 years of experience undertaking planning assessment, approvals and environmental licensing and offering clients planning and property advice.

Just because a development is listed as a permissible use with consent under Council’s Local Environmental Plan (LEP) zoning, it does not automatically mean it is appropriate in that location and will be approved. When assessing a development application (DA), Council must consider a range of factors listed in section 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

For example:

• The RU1 Primary Production zone permits open-cut mining with development consent, however, this use is not likely to be appropriate in all RU1 zoned land; and

• Even for a straightforward extension to an existing house, Council must consider environmental impacts, including overshadowing, traffic, parking, noise, privacy, visual amenity, vegetation and public interest.

Councils each have Development Control Plans (DCPs) that provide detailed guidelines around the standards Council will use to assess a DA. Whilst DCP controls are not statutory (i.e. not imposed by government or legislation) and therefore not a prohibition to development, they are persuasive policy that Council should apply consistently.

Councils also have a range of strategic plans they must consider. These plans include additional development objectives, controls, desired future layout, and uses that may affect your site.

Alternatively, a Complying Development Certificate (CDC) is available for a range of simple developments considered to be of low impact. A CDC is an application that can be approved by a private certifying authority (PCA) or Council and is generally faster, cheaper and easier than a DA.

When considering buying a property or redeveloping, it is prudent to consider more than the zoning. A Section 10.7 certificate (previously known as a Section 149 Certificate) will identify key constraints, including zoning, flooding, heritage, mine subsidence and bushfire, but there is a range of state policies and legislation that also affect development potential, override Council zoning and prevent the use of CDCs. Issues such as bushland, coastal zone, waterways and priority development precincts affect certain land in addition to Council’s LEP and DCPs.

When purchasing a property, it is vital to get advice on the planning restrictions affecting the development potential of the property and the best approval pathway for your development proposal.