To close out our recent discussion on the subject of land use zones and permissible land uses, it’s worth looking briefly at a couple of aspects of the approvals process.
The fundamental difference between land uses that are permitted without consent, or classified as exempt developments, and those that require consent is that, in the latter case, conditions apply. It is a common misunderstanding that permitted with consent means that consent is guaranteed, that the application process is just bureaucratic red tape and that the only question lies with the conditions that will ultimately accompany consent.
The fact is that, while a nominated land use may be permitted within a particular land use zone, it may not necessarily be permitted just anywhere within that zone. A significant part of the consent process is the determination of whether or not the location and style of the proposed land use is appropriate, and there are many factors that come into play in making this assessment.
As mentioned last month, there is a raft of LGA map overlays that identify specific development controls—Land Zoning, Lot Averaging, Lot Size, Height of Buildings, Heritage Items—or landscape features—Riparian Lands and Watercourses, Flood Planning, Drinking Water Catchment, Terrestrial Biodiversity, Landscape (salinity, slope and erodible soils), Scenic Protection and Bushfire Prone Land—and each of these is tied to specific clauses in the LEP that must be able to be satisfied, where relevant, before any approval can be granted. As I’ve noted throughout, the land use zone is just one consideration and none of the other maps or their associated conditions are explicitly tied to any particular land use zone.
For example, apart from the actual list of permitted land uses within a zone, environmental controls are applied through the above mentioned map overlays and apply regardless of the underlying land use zone. There will often be a correlation between land use zoning and other features, but specific controls are invariably applied through the relevant feature map and its LEP clauses, not the underlying land use zoning.
The second aspect of the approvals process that I thought worthy of mention is the approval mechanism, specifically determination through a Development Application (DA) versus a Complying Development Certificate (CDC).
The NSW Government, through the Exempt and Complying Development Codes State Environmental Planning Policy (the Codes SEPP), identifies a range of land uses that can be carried out either without need for any level of approval or as what is known as complying development, the latter involving the issue of a CDC, rather than approval of a DA. Additional potentially exempt or complying land uses can also be specified in an LEP.
The same conditions will invariably apply, regardless of whether the development is undertaken via a DA or with a CDC. The fundamental difference is that a CDC can be issued more quickly if the proposed development can demonstrate up front that it satisfies the Development Standards specified in the Codes SEPP or LEP. Any specific development that cannot satisfy all of these preconditions, must be assessed via a DA.
It is, perhaps, also important to recognise that land uses not explicitly listed in the Codes SEPP as being exempt may, nonetheless, already be exempt, either implicitly as ancillary to an approved land use or as explicitly exempt development, under a particular LEP. The point here is that, when reading the Codes SEPP, the fact that a land use is not identified as being exempt in a particular land use zone does not imply that it requires approval. The Codes SEPP simply overrides any existing approval requirements—it doesn’t create any requirement that doesn’t already exist in an LEP.
Similarly, exempt or complying Codes (e.g. the Housing Alterations Code, which covers renovations to dwellings and the like) that do not explicitly identify any land use zone, apply in all land use zones.
The key issue with complying development is not so much that it’s easier, or even cheaper, but rather that it can be quicker when that’s important. Development will still be required to comply with all relevant provisions of the LEP, it’s just that, if it can be established that it satisfies a predefined set of conditions up front, the process of issuing approval can be streamlined. Someone still has to verify that all conditions have been satisfied, it just doesn’t need to be a council officer.
For a building company, delivering a standardised product into a well-defined environment, where ‘time is money’, there can be real savings. For a bespoke product, this may not be the case, assuming that it can satisfy the complying development preconditions in the first place. The bottom line is that, while a CDC may cost less than a DA up front, the cost of certifying the development may prove to be quite the opposite. Once again, there are many factors that come into play, so there’s no simple answer as to which approach might generally be better.
In my own case, time has never been a limiting factor. I have always been an owner-builder, have never had a problem with a DA (all done when I was not a councillor), and have found the DA process, with council as my certifier, to be a more cost effective path than the complying development/private certifier alternative.