Planning and development

Crown land managers (CLMs) are responsible for upgrading and replacing infrastructure, buildings and facilities, with a view to maximising the life of their assets. The scale and requirements of any infrastructure development will depend on your particular resources, assets, and perceived public demand or need. You should also take into account the maintenance condition assessment reports and any plan of management for the reserve.

Under the Environmental Planning and Assessment Act 1979 (EP&A Act), ‘development’ includes:

  • erecting a building
  • carrying out a work
  • demolishing a building or work
  • subdividing land
  • changing the use of land.

Development can involve a very minor work on land, such as putting up fences or advertising signs, or there may be no physical change to the land at all. For example, changing the use of land from a cow paddock to a sports field would be a form of development, even if nothing was built. Therefore, be aware of possible regulations and requirements that might apply.

This section provides guidance on the planning and development process, including siting and scaling, and regulatory requirements.

Efficient siting and scaling of structures

If CLMs plan to develop any buildings, assets or infrastructure, you need to consider the likely impacts of that development. These will include environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

CLMs should take care that decisions regarding the siting and design of developments proposed now do not unduly limit future development possibilities.

To ensure suitable siting and scaling of proposed buildings, assets and infrastructure, it is a good idea to establish a review panel. Ideally this panel could consist of some CLM  representatives with planning or building experience, but will depend on the CLMs resources.

Infrastructure should be positioned to achieve the best and most efficient use of the land and the development itself, and to satisfy legislative and policy requirements. For instance, it would be best to develop public amenities such as toilets, picnic tables and barbeques in one area, with good road and parking access. This would be more convenient for the public while also sustaining the surrounding land and environment.

You need to determine the appropriate size of a development, taking into account factors such as the size of the land, its purpose, expected level of usage and ongoing future demand. Avoid developing buildings, assets and infrastructure on a scale that exceeds future needs, or that would have maintenance requirements greater than the CLM’s funding capabilities.

These general guidelines apply (but are not limited) to buildings, toilets, picnic facilities, playground equipment and roadways.

Development controls and approvals

The EP&A Act regulates development in NSW, and has established a framework for the control and assessment of development proposals. This consists of environmental planning instruments, which contain the development controls, and an application, assessment and approval process. The application, assessment and approval process differs according to the nature and scale of the development proposed.

Land owner’s consent

Proposed development that requires approval under part 4 of the EP&A Act, requires land owner’s consent for a CLM or tenure holder to lodge a development application (DA) on Crown land, unless a development type is covered under section 2.23 of the Crown Land Management Act 2016 (CLM Act).

Section 2.23 of the CLM Act has introduced low impact development types where the minister responsible for the CLM Act is taken to have given land owner’s consent on behalf of the Crown to make a development application (DA) under Part 4 of the EP&A Act.

When considering land owner’s consent requirements, a CLM or tenure holder should determine if the proposed development falls within the kinds of development set out in s2.23(2) of the CLM Act. If a development type clearly fits within those listed, land owner’s consent is taken to be given (deemed). If you’re not certain whether the proposal would fall within the kinds of development for which land owner’s consent is deemed, talk to the department.

A Deemed Land Owners Consent fact sheet provides further guidance for CLMs or tenure holders looking to apply section 2.23 of the CLM Act.

Environmental planning instruments

Environmental planning instruments (EPIs) are made under the EP&A Act and contain the controls that apply to land or to certain types of development. EPIs include state environmental planning policies (SEPPs) and local environmental plans (LEPs).

  • LEPs are prepared by the local council and approved by the minister responsible for the EP&A Act. LEPs divide a local government area into a series of zones according to land use types (such as residential, commercial or industrial), specify developments that are permissible in each zone, and contain development standards that must be complied with.
  • SEPPs cover particular types of development issues considered to be of state-wide significance. SEPPs can relate to certain types of development wherever they occur (for example, SEPP 21 – Caravan Parks), or to certain areas (for example, SEPP 14 – Coastal Wetlands), or to certain categories of development (for example, ‘exempt development’ and ‘complying development’).

You can find the full text of all EPIs on the NSW Government legislation website.

The development application, assessment and approval system

Development is defined in the EP&A Act as:

  • the use of land
  • the subdivision of land
  • the erection of a building
  • the carrying out of a work
  • the demolition of a building or work
  • any other act, matter or thing that is controlled by an EPI.

Development is categorised by type according to definitions contained in an EPI. A proposed development needs to be classified by its relevant definition, as the zoning table will list developments by those definitions. For example, a boat landing facility or a playground may be defined as a ‘tourist facility’, while a building or place owned or controlled by a reserve and used for public purposes could be a ‘community facility’.

Zoning generally comes from a LEP, and can be determined either by consulting the LEP maps held by your local council, by typing the address into the NSW Planning Portal, or by applying for a Section 10.7 certificate (of the EP&A Act) from the council. This certificate will explain the zoning of the land, the activities permissible on that type of land, and the EPIs that apply. There is a fee to obtain a Section 10.7 certificate from council.

The process for obtaining consent for development, or whether consent is required at all, will depend on the categorisation of the development within an EPI and the zoning of the land.

The following categories of development apply:

  • ‘Development with consent’ requires submission of a development application to a consent authority (generally a local council) and assessment and approval of that application. The process for ‘development with consent’ is set out in Part 4 of the EP&A Act.
  • ‘State significant development’ (Division 4.1 of the Act) and ‘state significant infrastructure’ (Division 5.1 of the Act) refers to proposals defined as ‘state significant’ in State Environmental Planning Policy (State and Regional Development) 2011 (or as otherwise determined by the minister responsible for the EP&A Act).  These proposals tend to be of large scale, and particular processes relating to application, assessment and approval apply.
  • ‘Activities’ are development proposals that do not require development consent, but are still required to undergo an environmental assessment in accordance with the procedures set out in Part 5 of the EP&A Act.
  • ‘Exempt development’ is development that is regarded as minor enough to be able to proceed without the need for any development consent (under Part 4) or any environmental assessment (under Part 5).
  • ‘Complying development’ is development that does not require development consent, provided it is consistent (i.e. it complies) with a pre-set list of criteria. Complying development can proceed if a certificate (“complying development certificate”) is issued confirming that all such criteria have been met.

Exempt development

A wide range of development types are exempt, including fences, shade structures, water tanks and certain types of signs.

Exempt developments are listed in one of the following:

  • an LEP
  • SEPP 4 – Development Without Consent and Miscellaneous Exempt and Complying Development
  • SEPP 60 – Exempt and Complying Development
  • SEPP (Exempt and Complying Development Codes) 2008
  • SEPP (Infrastructure) 2007.

Consult with the local council to confirm if a development is exempt, as the relevant LEP or SEPP may specify certain areas where the exempt provisions do not apply, and the types of development categorised as exempt varies from council to council.

If a development is confirmed to be exempt development, then no application for consent is required. Environmental assessment under Part 5 of the EP&A Act is also not required for exempt development.

Complying development

Complying development is routine development (such as dwellings, alterations and additions to buildings and some changes of use) that may be carried out 'as a right', provided it fully complies with the requirements and conditions nominated for that development.

Complying developments are listed in the following:

  • an LEP
  • SEPP 4 – Development Without Consent and Miscellaneous Exempt and Complying Development
  • SEPP 60 – Exempt and Complying Development
  • SEPP (Exempt and Complying Development Codes) 2008
  • SEPP (Infrastructure) 2007.

An application for a complying development certificate must be lodged with the local council or an accredited private certifier. Accredited certifiers are private sector professionals accredited to issue certain certificates and perform specific duties under the EP&A Act, and can be used instead of the council to issue a complying development certificate. To find an accredited certifier, consult the Building Professionals Board .

A plan of the proposed development, the applicable fee and all other requirements specified on the application form must be submitted to the council or accredited certifier.

The planning department’s website has more information on complying development.

Development that requires consent

Development that may be carried out only with development consent is listed in either an LEP or SEPP. The majority of development falls within this category, and includes development such as the construction or alteration of buildings and structures, subdivision, and the change of use of buildings or land.

A development application (DA) must be submitted to the local council seeking development consent for the proposal. A DA form (obtained from the council) is submitted along with the relevant fees, plans of the proposed development, and a statement of environmental effects, which describes the proposed development and its environmental impacts.

The statement of environmental effects may be prepared by the CLM or by a consultant (such as a town planner). It must indicate the environmental impacts of the development, how the impacts have been identified, and the steps which will be taken to protect the environment, lessen harm to the environment or remove those impacts altogether.

Generally where a CLM intends to lodge a DA, the CLM must seek land owner’s consent (consent from the department as the land owner) prior to submitting a DA. However, section 2.23 of the CLM Act, provides a set of circumstances where land owner’s consent can be taken to have been given by the minister responsible for the CLM Act (or the department). If you’re unsure if land owner’s consent is required, contact the department to confirm.

Integrated development

Development that requires development consent from a council and also an approval from another government department under other nominated legislation is categorised as ‘integrated development’.

Section 91 of the EP&A Act lists the other nominated required approvals that trigger the integrated development provisions.

This could include a permit from the department under the National Parks and Wildlife Act 1974 to destroy or damage a known Aboriginal object or place, or an approval from the Heritage Branch of the department to carry out works affecting a heritage item listed on the State Heritage Register.

The application and approval process for integrated development is similar to that for development that requires consent, as described above. However, you need to identify those other required approvals on the DA form, and submit the relevant fees and additional plans to council.

It is the council’s responsibility to refer the application to these other agencies.

State significant development

State significant development, formerly known as Part 3A major projects, is development for which the minister responsible for the EP&A Act (or delegate) is the consent authority, and generally comprises large-scale development with state or regional significance. State significant developments are declared by the minister by way of an order in the Government Gazette, or are listed in SEPP (State and Regional Development) 2011, and include state government infrastructure projects, particular sites or localities declared state significant, and other projects declared by the minister.

State significant development (dealt with under Division 4.1 of the EP&A Act) applies to major projects significant to the NSW economy and large-scale or complex projects that may involve significant environmental impact.

State significant infrastructure (dealt with under Division 5.1 of the EP&A Act) applies to large-scale linear infrastructure such as rail lines, roads, electricity transmission lines, pipelines, ports and major water supply systems.

Any CLM considering or approached by a third party or other government authority to undertake state significant development or state significant infrastructure within their reserve should first consult with the department.

Designated development

Designated development is development that requires consent and is likely to have significant impacts on the environment. It is subject to special regulatory procedures.  A list of designated developments is contained in Schedule 3 of the Environmental Planning & Assessment Regulation 2000, and includes developments such as marinas, intensive agricultural activities, aircraft landing facilities and extractive industries. Some environmental planning instruments will also specify that developments in particular areas are designated. SEPP 26-Littoral Rainforests is an example.

Designated development requires a DA to be lodged with the relevant consent authority (either the council or the department administering the EP&A Act), together with the relevant fees, plans and an environmental impact statement (EIS).

The EIS considers in detail all potential impacts of the development on the environment of the site and surrounding area and will generally must be prepared by an appropriately qualified expert. An EIS must contain the information specified in Schedule 2 of the Environmental Planning & Assessment Regulation 2000, including:

  • a description of the development
  • a description of the environment that is likely to be affected by the development
  • an analysis of the likely impacts of the development
  • measures proposed to lessen harm to the environment caused by the development
  • any feasible alternatives to the development
  • a justification for carrying out the development as proposed, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development.

CLMs considering a designated development should discuss their proposal with the department prior to preparation, and must provide a copy of the DA to the department before it is lodged with the consent authority. If a designated development is proposed by a third party or a lessee, then written consent to submit the DA is required from the department prior to lodgement.

Prohibited development

Environmental planning instruments will nominate certain types of development that are prohibited in each zone. Consent usually cannot be granted to prohibited developments. However, SEPP (Infrastructure) 2007 and the provisions relating to state significant development and state significant infrastructure provide some exceptions that enable consent to be granted for prohibited development.

Development comprising clearing of native vegetation

Clearing of native vegetation may require development consent under the Native Vegetation Act 2003, regardless of the provisions of any environmental planning instruments. Native vegetation is vegetation that is indigenous to NSW, and clearing includes cutting down, felling, thinning, logging or removing native vegetation, or killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation.

The clearing of native vegetation should be avoided where possible. Where clearing of native vegetation is required, the CLM may apply to the relevant Local Lands Services (LLS) region for either development consent or approval of a property vegetation plan (PVP). A PVP is a voluntary but binding agreement with a LLS that nominates and approves clearing and also incorporates positive land management requirements. The CLM should consult the relevant LLS to determine which process is best suited to the reserve land, and the process to obtain approval. Before a PVP can be approved by an LLS, written consent from the department is required. A list of LLS and their contact details is available at www.lls.nsw.gov.au.

The department's website has more information on clearing of native vegetation.

The development consent process

When assessing an application for development consent, the consent authority must consider the matters listed in Section 79C of the EP&A Act. These are:

  • the provisions of any environmental planning instrument  and development control plan, and any draft environmental planning instrument that has been exhibited
  • the likely impacts of the development, including environmental impacts on the natural and built environment, social impacts and economic impacts
  • the suitability of the site for that development
  • any submissions made in relation to the proposal, including government agencies and nearby landowners or residents
  • the public interest.

DAs may be granted consent, either conditionally or unconditionally, or may be refused. If a local council is the consent authority, the determination will be made by the local councillors at a council meeting, or it may be delegated to council officers.  If a joint regional planning panel is the consent authority, the determination will be made by the members of the panel at a meeting of the panel. If the minister responsible for the EP&A Act is the consent authority, the determination will be made either by the minister or it may be delegated to the senior officers of the department administering the EP&A Act, or to the Independent Planning Commission.

Environmental assessment of development without consent

Developments that are permitted without consent and are undertaken by a public authority, are undertaken on public land, and/or require some other type of approval from a public authority, require an assessment of their environmental impact in accordance with the provisions of Part 5 of the EP&A Act. Note that development categorised as ‘permitted without consent’ differs from ‘exempt development’ and ‘complying development’.

Developments that require environmental assessment under Part 5 of the EP&A Act are called ‘activities’. The definition of ‘activity’ is similar to that for ‘development’.

SEPP (Infrastructure) 2007 designates a number of types of infrastructure and works as ‘development permitted without consent’ when they are carried out by public authorities. Where a council CLM proposes to carry out such development, and that development involves the construction of large or significant permanent structures on a Crown reserve (for example, roads, car parks, visitors’ centres, maintenance depots, outdoor recreation facilities such as skate parks, etc), the council must notify the department in writing of the details of the development prior to carrying out the activity.

An environmental assessment required under Part 5 of the EP&A Act must “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment”. This is designed to encourage both the applicant and the decision-maker to consider what measures can be adopted to minimise the environmental impact of the proposal.

The factors that must be considered include:

  • conservation agreements and plans of management under the National Parks and Wildlife Act 1974 and joint management agreements under the Threatened Species Conservation Act 1995
  • the effect on any wilderness area
  • the effect on critical habitat, threatened species, populations and ecological communities and their habitats and protected fauna and native plants
  • all environmental and related factors set out in clause 228 of the Environmental Planning & Assessment Regulation 2000.

Where the activity is likely to have significant impacts or significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities or their habitats, additional procedures will apply, including the possibility that the proposal will require an environmental impact statement (EIS) and/or a species impact statement and/or become a 'state significant project', subject to assessment by department administering the EP&A Act under Part 4.1 of the EP&A Act.

We encourage CLMs to contact the department for further advice and assistance.

Regulatory requirements

The following legislation, regulation and policies may apply to your management of assets and infrastructure on Crown reserves. This list is not exhaustive, and should only be used as a guide.

Documentation

  • Crown Land Management Act 2016
  • Crown Land Management Regulations 2018
  • Work Health and Safety Act 2011

Development and planning

  • Environmental Planning and Assessment Act 1979
  • Environmental Planning and Assessment Regulation 2000
  • Native Vegetation Act 2003
  • Threatened Species Conservation Act 1995

More information

  • The NSW Planning Portal lists all planning regulations, including LEPs and SEPPs, that apply to a given address.
  • State legislation (Acts, Regulations and EPIs) relating to CLMs, including the Crown Land Management Act 2016, can be found at NSW Government's legislation website.

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