Solutions for Developers

Is Zoning A Problem?

A Local Environmental Plan (LEP) is a legal instrument that zones land and imposes various requirements to control development.

An LEP applies to a particular area, which may be the whole or a specific part of a local government area.

If the LEP does not provide for what your development requires to be successful then “spot re-zoning” may be an answer.

Spot Re-Zoning

It is possible for there to be spot re-zonings of land that will result in an up-zoning of land in existing areas zoned for residential, business and industrial purposes.

Such spot re-zoning may occur if it will promote development by allowing an increase in the floor space ratio (FSR), increase the height of building controls or vary the requirement as to minimum lot sizes. In other words, an LEP can be amended in order to promote development.

Until recently, a person requesting a re-zoning was not recognised at all by the planning system and had no rights to seek a review of any decision made.

On 2 November 2012, the New South Wales State Government introduced a system that the government promotes as giving an opportunity for re-zoning proposals which are well located and have merit to proceed after an independent review.

The system was introduced with an intention of greater transparency and accountability.

The Process

Under the new spot rezoning process land owners, or developers, can ask a council to prepare a planning proposal.

An Applicant can seek a review of Application if the council makes no determination within ninety (90) days, or if the Applicant does not agree with the council refuses the proposal, or if the council’s requirements, or variations as imposed.

A formal Application for review can be made to the New South Wales Department of Planning and Infrastructure.

The Application must clearly demonstrate why the request to review the decision is justified and why the request to review the decision is justified and why the proposal should proceed.

If the Department considers that the request has strategic merit, which has been demonstrated, then the matter is referred to a panel for further consideration and providing advice to the Minister as to whether or not the matter should proceed.

The initial assessment fee is currently $5,000.00. If the Application proceeds to a formal review, then a further fee of $15,000.00 is charged.

A community consultation process is also determined. Consultations occur with relevant public authorities and, if necessary, the proposal is varied.

The proposal is publicly exhibited, generally low impact proposals for 14 days, others for 28 days. A person making a submission may also request a public hearing be held.

The relevant planning authority considers public submissions and the proposal is varied as necessary. Parliamentary Counsel then prepares a draft local environmental plan, the legal instrument.

Once approval is granted, the Minister’s approval of the plan becomes law and is published on the NSW government.

The drawbacks

The system appears to lack the discipline of a well-managed Court Application. Delays are common and it lacks function to compel the Department to process the Applications made in a timely manner.

However if you are prepared to tolerate the process, making an Application may be worthwhile.

These matters are complex ones. Kreisson Legal are able to assist in that process.

Kreisson Legal is uniquely placed, with its expertise in building, engineering and property law, to assist developers through the whole process.

The contents of this brochure does not constitute legal advice and should not be relied upon as such. If you require legal advice, please contact Kreisson Legal.

The Property Team