Development Applications:

There are several broad categories of development types for which an individual will require consent from a local authority before construction can commence. These can be described in the following terms:

• State Significant Development;
• Local Development, which includes:
  • Complying Development;
  • Designated Development;
  • Advertised Development; and and
  • Integrated Development.

The first category, State Significant Development, will require the consent of the Minister. This is because the development is connected to something which is deemed to be State significant. Whether or not a development falls under this category will be determined according to relevant planning controls or the direction of the Minister himself.

The second category, which is broken down into the four subcategories, are developments that are not considered to be State significant. Complying developments are the least onerous and require Council consent or the consent of a private accredited certifier. The designated development is one that may have an impact on the local environment, and will therefore require the production of an environmental impact statement or a species impact statement. Advertised development, as the name suggests, requires public notification before any consent can be obtained. Integrated developments require consent under the Environmental Planning and Assessment Act 1979 (NSW) as well as a possible permit, license or approval under other legislative schemes such as:

• Fisheries Management Act 1994 (NSW)
• Heritage Act 1977 (NSW)
• Mine Subsistence Compensation Act 1961 (NSW)
• National Parks and Wildlife Act 1974 (NSW)
• Protection of the Environment Operations Act 1997 (NSW)
• Roads Act 1993 (NSW)
• Water Management Act 2000 (NSW)

Different kinds of developments will therefore involve different consent application processes.

Ordinarily the authority that is approached for development consent will consider the following matters before reaching a determination:

• The provisions of the relevant Planning Instrument;
• The provisions of a draft, publically exhibited Planning Instrument;
• Any Development Control Plan;
• The particulars of the Environmental Planning & Assessment Regulations that are relevant to the development under application;
• The development’s likely impact on the local environment, with considerations also going to the impact on the social and economic dynamic of the locality;
• Public submissions, if any; and
• General “Public Policy” considerations.

In relation to a Designated Development, the authority that is approached for development consent will have to give the public notice for a specified period of time, and allow public feedback as well as any submissions to be made in respect of the proposed development. The notice must be delivered in writing to all owners of adjoining lots to the lot on which the proposed development is to take place, and all pertinent details of the proposed development must be disclosed for full and informed consideration.

It is not unusual for a dispute to arise in relation to a development consent on a point of fact or law, or in relation to the particulars of a building certificate. Modifications to a development consent can be made under section 96 of the Environmental Planning and Assessment Act 1979 (NSW) – this is often referred to as a “s 96 amendment”.  Modifications need to be substantially the same and so a developer should liaise with the officer who dealt with the original development consent being modified to confirm the merits of an application under section 96.

In all of these matters, legal advice may be crucial to ensure the efficient progress of your proposed development. Navado Lawyers and Solicitors can assist in the (legal) preparatory stages of a proposed development and offer legal representation in the event of any disputes with the Council or other interested third party needing to be resolved under Alternative Dispute Resolution (Mediation, Arbitration, Conciliation) or Court proceedings.   Our legal team has advised on as well as litigated matters, with and without Counsel, in the Land and Environment Court, relating to Development Consents.  If you require a Development Consent Lawyer, you should make contact with our office and make a time to see a member of our Environmental & Property Law team.

It is not inconceivable that a developer will come across heritage issues when wishing to develop a site that has some historical or cultural significant. These matters will involve dealing with the Heritage Council of New South Wales and the provisions of the Heritage Act 1977 (NSW). Among other things, the Act concerns itself with matters that commonly arise in heritage disputes such as, stop work orders, acquisition of land, maintenance and repair, controlling and restricting harm and damage to heritage items, and also outlines the penalties associated with breaches of the statutory and regulatory framework. For more information about these issues, see our section titled “Heritage Laws.”  If you require legal advice in relation to heritage issues, you may wish to make contact with our office and speak to a heritage lawyer. 

A liability may arise for developers who acquire land formerly used for a purpose involving hazardous waste, and who wish to develop the land for another purpose such as a childcare centre. For more information, see our “Contaminated Land Management and Remediation” section.

For some development types, a developer may be required to comply with the provisions concerning environmental impact statements and species impact statements. These can be complex documents and need to be completed diligently. Any failure to comply with environmental or ecological protection measures may result in the development consent being revoked. For more information, please see our sections on:

• “Biodiversity Law”;
• “Environmental Impact Assessment”;
• “Species Impact Statement”; and
• “Native Species Legislation.”