Environmental Planning and Assessment Act 1979 No 203
Historical version for 7 January 2011 to 23 January 2011 (accessed 26 November 2014 at 23:38) Current version
Part 3Division 1

Division 1 General

24   Making of environmental planning instruments

(1)  Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.
(2)  Environmental planning instruments may be made:
(a)  by the Governor under Division 2 (called a State environmental planning policy or SEPP), or
(b)  by the Minister (or delegate) under Division 4 (called a local environmental plan or LEP).
Note. Under transitional arrangements made by Schedule 6, some former instruments (such as regional environmental plans, planning scheme ordinances and interim development orders) continue in force.

25   (Repealed)

26   Contents of environmental planning instruments

(1)  Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:
(a)  protecting, improving or utilising, to the best advantage, the environment,
(b)  controlling (whether by the imposing of development standards or otherwise) development,
(c)  reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section,
(d)  providing, maintaining and retaining, and regulating any matter relating to, affordable housing,
(e)  protecting or preserving trees or vegetation,
(e1)  protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats,
(f)  controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e),
(g)  controlling advertising,
(h)  such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act.
(1A)  An environmental planning instrument may also make provision for or with respect to protecting and conserving vulnerable ecological communities.
(1B)  Despite subsection (1A), an environmental planning instrument must not contain any provision that requires a consent authority, before determining a development application relating to development that may affect a vulnerable ecological community:
(a)  to consult with the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 about the effect of the development on the vulnerable ecological community, or
(b)  to obtain the concurrence of the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 in respect of the development because of its possible effect on the vulnerable ecological community.
(2), (3)  (Repealed)
(3A)  An environmental planning instrument may make provision for any zoning of land or other provision to have effect only for a specified period or only in specified circumstances.
(4)  An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision:
(a)  for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and
(b)  for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4.
Note. Section 5C provides that a reference to the Threatened Species Conservation Act 1995, in relation to the critical habitat of fish or marine vegetation, is taken to be a reference to Part 7A of the Fisheries Management Act 1994.

27   Owner-initiated acquisition of land reserved for public purposes

(1)  An environmental planning instrument that reserves land for use exclusively for a purpose referred to in section 26 (1) (c) must specify an authority of the State that will be the relevant authority to acquire the land if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.
(2)  Section 21 of the Land Acquisition (Just Terms Compensation) Act 1991 applies for the purposes of determining whether an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c).
(3)  An environmental planning instrument (whenever made) is not to be construed as requiring an authority of the State to acquire land, except as required by Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.
(4)  Subsection (3) applies despite:
(a)  any provision of an environmental planning instrument (whenever made) to the contrary, or
(b)  the service of a notice to acquire the land on an authority of the State on or after the day on which notice was given in Parliament for leave to introduce the Bill for the Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006.

28   Suspension of laws etc by environmental planning instruments

(1)  In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.
(2)  For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.
(3)  A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.
(4)  Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.
(5)  A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.
(6)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

29   Designated development: declaration by environmental planning instruments

An environmental planning instrument may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development for the purposes of this Act.

29A   Advertised development

(1)  Without limiting the generality of section 26 (1) (b), an environmental planning instrument may identify development, other than designated development, as advertised development.
(2)  Any such provisions may add to or extend, but not replace or reduce, the provisions of the regulations concerning the notification and advertising of development and the making of submissions relating to advertised development.

30   Consents and concurrences

(1)  Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein:
(a)  may be carried out without the necessity for consent under this Act being obtained therefor, or
(b)  may not be carried out except with consent under this Act being obtained therefor.
(2)  Where provision is made in accordance with subsection (1) (b), the instrument may provide that a development application in respect of development specified in the instrument shall not be determined by the granting of consent under this Act, except with the concurrence of such Minister or public authority as is specified in the instrument to the carrying out of the development.
(3)  An environmental planning instrument which makes provision in accordance with subsection (2) shall state the matters which shall be taken into consideration in deciding whether concurrence should be granted.
(4), (5)  (Repealed)

31   Prohibitions

Without limiting the generality of section 26 (1) (b), an environmental planning instrument may provide that development specified therein is prohibited.

32, 33   (Repealed)

33A   Standardisation of environmental planning instruments

(1)  The Governor may, by order published on the NSW legislation website, prescribe the standard form and content of local environmental plans or other environmental planning instruments (a standard instrument).
(2)  An environmental planning instrument may be made in the form of:
(a)  a declaration that the applicable mandatory provisions of a standard instrument are adopted, and
(b)  the prescription of the matters required to be prescribed for the purposes of the application of the mandatory provisions of the standard instrument (such as the adoption of land zoning or other maps), and
(c)  the prescription of any other matters permitted to be prescribed by an environmental planning instrument, including non-mandatory provisions of the standard instrument (with or without modification) or additional provisions.
(3)  When an environmental planning instrument is made with such a declaration, the instrument has the form and content of the applicable mandatory provisions of the standard instrument and the matters so prescribed.
(4)  If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) or by an Act after they are adopted, the environmental planning instrument is taken (without further amendment) to adopt the amended provisions of the standard instrument on and from the date the amendment to the standard instrument takes effect.
(5)  The order that amends a standard instrument may make provision of a savings or transitional nature consequent on the amendment of the standard instrument.
(6)  Where a standard instrument has been adopted, the provisions of the environmental planning instrument (other than the mandatory provisions of the adopted standard instrument) may be amended from time to time by another environmental planning instrument or in accordance with any Act.
(7)  A standard instrument may:
(a)  provide that a provision is a mandatory provision only in the circumstances specified in the instrument, and
(b)  contain requirements or guidance as to the form or content of a non-mandatory provision.
(8)  The adoption of the provisions of a standard instrument in an environmental planning instrument is taken to be a matter of State environmental planning significance for the purposes of this Act.
(8A)  An environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if:
(a)  the instrument adopts the provisions of a standard instrument for the purposes of replacing instruments that apply to the land concerned (being existing instruments that do not adopt the provisions of a standard instrument), and
(b)  the Minister is of the opinion that the replacement instrument does not make any substantial changes to the general effect of the existing instrument or instruments.
(9)  Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument is (if there is no applicable standard instrument) to be as determined by the Minister.
(10)  In this section:

amend includes alter or vary.

form includes structure.

33B   Staged repeal and review of environmental planning instruments

(1)  In order to facilitate the staged implementation of standard instruments and the periodic review of existing instruments, the Minister may, by order published on the NSW legislation website, establish a staged repeal program for existing environmental planning instruments.
(2)  The staged repeal program may include provision for or with respect to the following:
(a)  the repeal of designated environmental planning instruments at specified times during the period of the program,
(b)  requirements for the preparation and making of replacement instruments (including the times by which proposals for replacement instruments are to be submitted to the Director-General or the Minister),
(c)  the postponement of the repeal of particular instruments when the making of a replacement instrument is delayed,
(d)  the periodic review by a council of environmental planning instruments (other than State environmental planning policies) applying in its area and the submission of reports of each review to the Director-General.
(3)  At the time specified by the staged repeal program for the repeal of a designated environmental planning instrument, the instrument is repealed by the operation of this section.
(4)  The Minister may, under Division 4, make a local environmental plan to take effect on the repeal of an instrument under this section pending the making of a replacement instrument in accordance with this Act. Any such plan made by the Minister is to adopt the mandatory provisions of a standard instrument (with the prescriptions the Minister considers necessary in the particular circumstances).
(5)  For the purposes of subsection (4):
(a)  a local environmental plan made pursuant to that subsection is not required to comply with the conditions precedent in Division 4 for the making of an environmental planning instrument, and
(b)  (Repealed)
(c)  the council is to provide the Minister, when requested, with copies of any maps or other relevant documents prepared or held by the council.

The Minister may direct the council to pay to the Director-General such amount as the Director-General determines will meet the reasonable costs incurred on behalf of the Minister by the Department for the purposes of making the plan under subsection (4).

Note. See section 118 (1A) in relation to the power to appoint an administrator to exercise plan-making functions when a council fails to comply with the requirements of the staged repeal program for the preparation or making of a replacement instrument.

33C   Public access to environmental planning instruments and related documents

For the purpose of facilitating electronic or other public access to environmental planning instruments and any development control plans, contributions plans or other documents under this Act:
(a)  the Minister may determine standard technical requirements with respect to the preparation of those instruments, plans or other documents and of the maps or other documents that are referred to in (or adopted under) them, and
(b)  a council is to provide the Director-General, when requested, with copies and electronic files (in a specified format) of any such instruments, plans, maps or other documents prepared or held by the council.

34   Environmental planning instruments—making, operation and inspection

(1)–(4)  (Repealed)
(5)  An environmental planning instrument shall:
(a)  be published on the NSW legislation website, and
(b)  commence on and from the date of publication or a later date specified in the instrument.
(5A)  Subsection (5) does not prevent an environmental planning instrument from specifying different days for the commencement of different provisions of the instrument.
(5B)  Neither the whole nor any part of an environmental planning instrument is invalid merely because the instrument is published on the NSW legislation website after the day on which one or more of its provisions is expressed to commence. In that case, the provisions concerned commence on and from the day the instrument is published on the NSW legislation website, instead of on and from the earlier day.
(6)  A copy of every environmental planning instrument shall be available for public inspection, without charge, at the office of the Department during ordinary office hours.
(7)  The Director-General shall furnish each council affected by an environmental planning instrument with a copy of the instrument as soon as practicable after it is made.
(8)  A copy of each environmental planning instrument that has been furnished to a council by the Director-General shall be available for public inspection, without charge, at:
(a)  the office of the council during ordinary office hours, and
(b)  such other premises operated or controlled by the council and at such times as may be prescribed.
(9)  An environmental planning instrument shall be deemed to have been published on the NSW legislation website notwithstanding that any planning map or other instrument or material referred to, embodied or incorporated in the environmental planning instrument is not so published.
(10)  A reference in subsections (6), (7) and (8) to a copy of an environmental planning instrument includes a reference to any planning map or other prescribed instrument or material referred to, embodied or incorporated in the instrument.
Note. An environmental planning instrument is an instrument for the purposes of the Interpretation Act 1987, and accordingly standard provisions under that Act applying to statutory instruments apply to environmental planning instruments.

34A   Special consultation procedures concerning threatened species

(1)  In this section, the relevant authority means:
(a)  in the case of a proposed SEPP—the Director-General, or
(b)  in the case of a proposed LEP—the relevant planning authority.
(2)  Before an environmental planning instrument is made, the relevant authority must consult with the Director-General of the Department of Environment, Climate Change and Water if, in the opinion of the relevant authority, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be adversely affected by the proposed instrument.
(3)  For the purposes of the consultation, the relevant authority is to provide such information about the proposed instrument as would assist in understanding its effect (including information of the kind prescribed by the regulations).
(4)  The consultation in relation to a proposed local environmental plan is to commence after a decision under section 56 (Gateway determination) that the matter should proceed, unless the regulations otherwise provide.
(5)  The Director-General of the Department of Environment, Climate Change and Water may comment to the relevant authority on the proposed instrument within the following period after the consultation commences:
(a)  the period agreed between that Director-General and the relevant authority,
(b)  in the absence of any such agreement, the period of 21 days or such other period as is prescribed by the regulations.
(6)  The consultation required by this section is completed when the relevant authority has considered any comments so made.
(7)  In this section, a reference to the Director-General of the Department of Environment, Climate Change and Water includes, in the application of this section to fish and marine vegetation, a reference to the Director-General of the Department of Industry and Investment.

34B   Special provision for development in Sydney water catchment relating to water quality

(1)  In this section, Sydney drinking water catchment means a catchment area of the State to which the Sydney Water Catchment Management Act 1998 applies that is declared by a State Environmental Planning Policy to be the Sydney drinking water catchment.
(2)  Provision is to be made in a State Environmental Planning Policy requiring a consent authority to refuse to grant consent to a development application relating to any part of the Sydney drinking water catchment unless the consent authority is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on the quality of water.
(3)  Pending a declaration under subsection (1), the hydrological catchment (within the meaning of the Drinking Water Catchments Regional Environmental Plan No 1, as in force on that commencement) is taken to be the Sydney drinking water catchment.
Note. Schedule 6 provides that regional environmental plans are taken to be SEPPs as a consequence of the repeal of provisions of this Act relating to the making of regional environmental plans.
(4)  The Minister is not to recommend the making of a State Environmental Planning Policy that relates to the declaration of the Sydney drinking water catchment unless:
(a)  the Minister administering the Sydney Water Catchment Management Act 1998 approves of the declaration, and
(b)  the Minister administering the Protection of the Environment Operations Act 1997 has been consulted about the declaration.

35   Validity of instruments

The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication on the NSW legislation website.

36   Inconsistency between instruments

(1)  In the event of an inconsistency between environmental planning instruments and unless otherwise provided:
(a)  there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and
(b)  (Repealed)
(c)  the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.
(2), (3)  (Repealed)
(4)  Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.
Top of page