Planning & Development Law
Property development generally involves the improvement of land for profit, whether subdividing a single lot into two, or developing multiple lots in a larger parcel of rezoned land for house and land sales. There are many legal and financial matters to consider and the risks can be high which means you need to proceed carefully with proper legal advice on the land title and any home building contract you are required to sign.
Property development is governed by State and Local Government legislation, regulations, planning schemes and policies. These are variously administered by local councils and other government bodies. It is important to understand the relationship between these planning and development laws and how these various processes apply in your area and to your particular project.
Collaborating with an experienced planning and development lawyer and other professionals when embarking on a property development is invaluable to check off due diligence matters, minimise risk, and create the best structures to help you achieve your objectives.
Planning law in New South Wales
Over the years, planning and development laws have evolved and become more complex, taking into consideration a range of environmental issues and the need to balance public, social and cultural needs, and resources.
The Environmental Planning & Assessment Act 1979 is the primary legislation governing land use in New South Wales. It sets out the procedures for creating Environmental Planning Instruments (EPIs) which are used to manage and control the use of land. EPIs include State Environmental Planning Policies (SEPPs) which relate to the whole or part of the state and deal with matters of state or regional planning significance; and Local Environmental Plans (LEPs) which apply to local government areas and set out the permitted uses for specific parcels of land within a council area through zoning and development controls. Each zone specifies the main purpose of that land and identifies the types of development that are prohibited, permissible without consent, or permissible with consent. These instruments are detailed, intricate and frequently overlap.
When an owner of land wants to build a new house, extend an existing house or build a block of apartments, this requires a DA (Development Application).The process of obtaining development consent generally starts with the submission of a development application. This will require an analysis of the subject land and its zoning, the type of development sought and the interplay between the relevant state and local planning instruments.
The DA can also relate to other matters including Change of Use of Land, demolition, and construction of ancillary buildings or structures required on residential, commercial or industrial Land.
A proposed development must be consistent with local, regional, and state planning objectives and policies, and address environmental and other implications such as access to new lots, provision of services to the Land, the provision of open space or other facilities for public or community purposes. Consideration will also be given to the capacity for existing utilities, services, and infrastructure to support the proposed development.
Local councils play a significant role and impact upon the future development of land and resources within their respective areas. They are responsible for carrying out the administrative functions of the approval and certification processes and may also need to consider any objections to a proposed development.
In more recent times, the State Government amended the Planning Laws to permit Accredited Certifiers to deal with Certification of building and development works, as an alternative to Local Council. The Private Certifiers (PC) must be licensed and are required to assess the Planning Proposal in accordance with the same rules that apply to Council.
We help home owners, developers and investors with all aspects of the planning and development process, and work with planners, architects, engineers, and other consultants to help our clients implement suitable structures and agreements to achieve their development goals.
Another important aspect of Local Government Law is when an applicant for a DA is becoming frustrated with Council in the application process or a neighbour wishes to object to a proposed development on an adjacent property that will have serious negative impacts on the use and enjoyment of their home or strata through loss of privacy, overshadowing, noise or other direct impacts.
Having served on Woollahra Council for 13 years as Councillor on the Urban Planning and Development Control Committees, and former Mayor, I have an insightful grasp on the internal workings of Councils. Consequently, I bring a wealth of experience in advising clients on making Submissions to Councils, Development Applications, appearing before Council Planning Panels and Committees, preparing Objections on impact grounds and Appeals to the Land & Environment Court.
If you need assistance in this area of Law, contact John Comino at [email protected] or call us on 02 9386 5888 for expert legal advice.