Rezoning appeal rights

29 September 2011

The Urban Taskforce has been pushing strong for a series of interim reforms to the planning system, on the basis that NSW cannot wait until 2013 before we see substantial change.


One of the reforms we are pursuing is appeal rights when spot rezonings are refused or denied.


We have  prepared a policy paper for government providing detail on how this measure can be implemented quickly and easily on an interim basis, pending any wider planning reform in 2013.


Under our proposal, an applicant should be entitled to make, and have determined, a development application (including a ˜concept staged development application under the existing provisions) even if the development is prohibited by a statutory plan.


Strictly speaking, this is not a rezoning appeal; however, it has approximately the same effect. The consent authority (which would normally be a council, a joint regional planning panel or the Land and Environment Court on appeal) would have the power to approve a development application that is inconsistent with a prohibition imposed on the land.


This approach ensures that the existing appeals machinery for development applications is extended to cover appeals concerning prohibited development. It is simple and straightforward, because it avoids the need for new rezoning appeals machinery or complex amendments to the Environmental Planning and Assessment Act.


Under this reform, development would not be prohibited if the consent authority (or the Court on appeal) is satisfied that the prohibition that would otherwise apply either:

  • is unreasonable or unnecessary in the circumstances of the case; or
  • would, inherently or by the passing of time, bring about an inappropriate planning solution, including an outcome which conflicts with other policy outcomes adopted at a State, regional or local level.


The consent authority (or the Land and Environment Court on appeal) would also be obliged to take into consideration the public benefit of maintaining the prohibition adopted by the environmental planning instrument. The benefits of this reform are clear:

  • there would be a more streamlined process with a reduced need to pursue formal rezoning;
  • it would help implement the governments commitment to return planning powers to local communities – by freeing councils from some of the arcane prohibitions enforced upon them by the NSW Department of Planning and Infrastructure;
  • applicants whose development applications are denied (or not dealt with) by a council or a panel can have the merits of their matter dealt with by the Land and Environment Court;
  • the ability for planning authorities to use planning agreements to extort disproportionately high ˜voluntary levies from developers prior to rezoning decisions will be reduced (because of the presence of a right to a merits appeal); and
  • bureaucratic rules confining particular uses to particular zones will come second to clearly articulated strategic planning policies.

Our policy paper – which is now in the hands of government – can be found here.