21 March 2011
The Department of Planning has published changes to the Standard Instrument used for the so called “modernised” local environmental plans.
These changes arise from an options paper exhibited by the Department last year. The changes are now in force for all councils using Standard Instrument complainant LEPs (such as Liverpool, Lane Cove, Canada Bay, Goulburn, etc). They will come into force for other councils when their LEPs are converted into the Standard Instrument format. LEPs still in draft form, such as that of the City of Sydney, will need to be amended to reflect the new arrangements before they are finalised (although there will not necessarily be any further exhibition).
The good news is that most of the more whacky changes proposed in options papers exhibited last year have been dropped, following a highly critical submission from the Urban Taskforce (our submission is here).
Nonetheless, the changes are wide-ranging, including a wide number of revised definitions in the dictionary.
If you were reliant on a particular definition in a Standard Instrument compliant LEP for a pending development, you would be well advised to check that it hasn’t been changed.
Some of the most significant changes are set out below.
Neighbourhood shop definition
The neighbourhood shop definition is the most widely permitted category of retail establishment. Ity has been changed so that it now more closely resembles the old-style “general store” definition and is focused on the sale of “general merchandise”, rather than “small daily convenience goods”. (Although, unlike many general store provisions in old LEPs, all neighbourhood shops will be subject to a floorspace cap.)
This change will make it more difficult, if not impossible, for a shop that specialises in a narrow range of goods to be approved. The courts have previously said that a distinction can be drawn between “speciality” and “general merchandise” and that the definition of “general merchandise” is satisfied where a range and variety of product lines are offered for sale by retail.
It is possible that shops that are seeking to cater for particular activities (e.g. a DVD store or a florist) may be regarded as retailers of “speciality merchandise” rather than “general merchandise”. The change in definition will certainly raise uncertainty about the status of chemists, tobacconists, butchers and the like. Previously they may have been included because their products were “small daily convenience goods”, but it now may be more difficult to argue that their range is broad enough to be regarded as “general merchandise”.
Protection for nominated heritage items
Items that have not been listed as state heritage items, but have been publicly exhibited as proposed such items in a heritage study by council, will now receive formal protection under the LEP.
High technology industry
A new definition of “high technology industry” will allow councils to distinguish between politically attractive (“high technology”) light industries and other light industries. The more broadly defined “light industries” remains a mandatory permitted use in the General Industrial, Light Industrial, Enterprise Corridor and Business Park zones. However, in a zone such as the Business Development Zone (where all light industries should be permitted) it is possible that a council may only now allow “high technology industry”).
Timber and building supplies
The existing definition of “timber and building supplies” has been broadened to “hardware and building supplies” and now extends to goods and materials used for the construction and maintenance of outdoor areas adjacent to buildings. It is a mandatory permitted use in the Business Development Zone and the Enterprise Corridor zone, but not (sadly) in the Light Industrial zone. This is a partial win for the Urban Taskforce because it partly reverses some of the more recent anti-development changes to planning policy.
Business premises
The definition of “business premises” no longer includes entertainment facilities, such as night clubs. This, for example, means that nightclubs are no longer mandatory permitted uses in the Enterprise Corridor zone.
Industrial zones
There is a new mandatory zone objective for the industrial zones, exhorting consent authorities to protect the land for industrial uses (presumably making it harder to secure approval for bulky goods, hardware stores or fast food outlets in this zone).
Business Development Zone
The Business Development Zone objective no longer refers to the zone as being a location for “specialised retail uses”, but now refers to “bulky goods premises”. This is helpful if you want to build “bulky goods premises” in this zone, but not so good if you are looking to build other kinds of retail.
Aboriginal place of heritage significance
The existence of an “Aboriginal place of heritage significance” will no longer necessarily be disclosed in the heritage map of an LEP. Instead it may be hidden in a heritage study adopted by council.
This means that development on private land may be restricted, but the existence of the area will not be readily identifiable by reference to the LEP. This is something to watch out for when buying land, even in a highly urbanised setting (the place may be of contemporary significance). This is a particularly unjustifiable change, which has taken place despite our objections, and appears to be a deliberate attempt to make the planning system even more opaque.
Aboriginal objects
All “Aboriginal objects” are now to be treated in the same way as heritage items. This means that development consent will be required to demolish, move or alter the exterior appearance of an “Aboriginal object”.
An “Aboriginal object” is any deposit, object or other material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of an area of NSW, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal background.
There is no time limit on the definition of an Aboriginal object. That is, it may be 5 years old, 10 years old or 50 years old. There are very many such objects in existence. Previously an Aboriginal object needed to be specially named in an LEP to warrant protection under the LEP.
It is very strange that the Department of Planning should widen the protection extended by an LEP to such a very large category of unkown items. We alerted them to the problems this would cause, but they have decided to proceed anyhow.
Please bear in mind that items can be Aboriginal objects even if they are not fixed to the ground.
Where a DCP has extended protection to vegetation (as tree preservation orders have done in the past) it will not be possible for a permit to be issued to remove a tree that bears evidence of Aboriginal habitation of an area, except in a limited narrow set of circumstances. There is no legal requirement that the evidence is historic. That is, the tree may bear very recent markings evidencing Aboriginal habitation of the area and still be given this special protection.
Rural Small Holdings zone
The “Rural Small Holdings” zone has been renamed “Primary Production Small Lots”.
We will be expressing our alarm at some of the adverse changes identified above to the incoming government.
Further information
The Department of Planning’s explanation for the change is here.
The legal document amending the Standard Instrument is here.
35th zone
In a separate change the Department has added a 35th zone to the Standard Instrument, giving the City of Sydney and North Sydney a new special “B8 Metropolitan Centre” zone. The zone will make it easier for these two councils to exclude high density residential development.
The legal document making this change is here.
