Greenwich, NSW

Lane Cove Council has enabled a feed of their planning application alerts to <http://www.planningalerts.org.au/>. Hence it is now possible for GCA members and Greenwich residents generally to monitor the lodgement of planning applications for the Lane Cove LGA.
This service is provided without warranty or liability for omission.

THE ASSESSMENT PROCESS FOR RESIDENTIAL DEVELOPMENT IN GREENWICH

This brief 2011 guide has been prepared by the Greenwich Community Association to provide residents with information about the development assessment process in Lane Cove. The Association does not see its role as that of “community policeman” – it is up to individual property owners to exercise their rights to pursue applications or to challenge developments that concern them. However, residents are always free to raise their concerns for discussion at our public meetings.

The Association may lodge objections in its own right in the case of clear non compliance with Council planning codes. However, the complexity of planning legislation and competing aspirations means that the Association will initiate an objection in its own right only in exceptional circumstances.

Whilst we have endeavoured to provide accurate and up-to-date information, it must be emphasised that this is a complex area. Readers are advised to seek legal or town planning advice if they are contemplating a development of their own or initiating objections to a development by another party.

The Greenwich Community Association assumes no liability for actions or decisions taken that are based upon information contained in the document.

DEVELOPMENT OVERVIEW

THE ASSESSMENT PROCESS

THE CONSTRUCTION PHASE

DEVELOPMENT OVERVIEW

Introduction
Lane Cove Council’s controls over residential development in Greenwich are contained in two documents:
* Lane Cove Local Environmental Plan 2009
* Lane Cove Development Control Plan 2010.
These documents can be accessed on Lane Cove Council’s website http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Controls/LEPandDCP/LEPandDevelopmentControlPlans.htm

Development is also controlled by planning policies of the New South Wales Department of Planning called State Environmental Planning Policies. These policies generally relate to specific aspects of development such as affordable housing or guidelines for developments that do not require Council approval.

It is necessary to look at all sets of controls to get a clear picture of the development assessment process in Greenwich.

Lane Cove Local Environmental Plan 2009 (LEP)
This document outlines the zonings that apply in the Lane Cove Council area and the activities permitted within each zoning.
It also outlines the main development standards applicable in each zoning such as building height, floor space ratio (FSR), lot size etc.
Detailed maps are available on Council’s website showing applicable restrictions for each property – all you need is an address. The link to follow for this information is http://www.legislation.nsw.gov.au/mapindex?type=epi&year=2010&no=49
Take care to note the exact colour of a property'’s zoning some of them are rather alike!

If you are still unsure about the zoning for a property, apply to Council for a Section 149 Certificate
http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Application%20Approval%20Processes/Development%20Forms/DevelopmentForms.htm

Lane Cove Development Control Plan 2010 (DCP)
In 2010 Lane Cove Council consolidated all detailed development controls into one document known as the Lane Cove Development Control Plan. Both residential and commercial development requirements are covered in this document.
This scope of the DCP is, of necessity, wide ranging – specific sections of the DCP can be found on
http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Controls/LEPandDCP/LEPandDevelopmentControlPlans.htm

State Environmental Planning Policies (SEPPs)
The New South Wales Department of Planning has approved a number of policies that must be adhered to by local councils. Councils are not normally permitted to deviate from these policies without approval of the Department.
The list of these policies can be accessed on http://www.planning.nsw.gov.au/PlanningSystem/Legislationandplanninginstruments/ListofStatePolicies/tabid/78/language/en-AU/Default.aspx

The policy that is likely to impact most frequently on development in Greenwich is known as State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
This document outlines development or work that can be undertaken without the requirement for Council or neighbours’ approval (“exempt development”) and development or work that can be processed under a fast track system through Council without the requirement for consultation with neighbours (“complying development”).

There are many other SEPPs in operation in NSW. There may be times when the details of a development proposal seem quite out of the normal range of Council’s LEP and DCP provisions – this may be because it is covered by a separate SEPP. In most cases, Council has little power to prevent such a development if it falls within the guidelines detailed in the relevant SEPP.

LEP, DCP and SEPPs – their impact
It is necessary to look closely at these three documents to get a clear picture of what a Greenwich resident can do to their property and what rights they have in respect of what other people do to theirs.
And please be aware that things can change from time to time – we will endeavour to update links etc but we repeat our advice to seek professional help if your question is complex.

THE ASSESSMENT PROCESS

Check the Classification of a Property under the LEP
It is important to be very clear about the classification of a property within the LEP as this may impact on the process of assessment of a development proposal.
Council has designated some parts of Greenwich as requiring additional protection due to heritage characteristics or location near watercourses, foreshore etc. If a property is located in such an area, the application and assessment process may be subject to controls that differ from those for other parts of Greenwich.
Properties so designated can be identified on the Council zoning maps http://www.legislation.nsw.gov.au/mapindex?type=epi&year=2010&no=49.

Exempt Development
The State Environmental Planning Policy (Exempt and Complying Development ) Codes 2008 permits property owners to carry out some work to their properties without the need to seek Council approval (”exempt
development”) .Works that are classified as “exempt development” are those that generally have little impact on surrounding properties – they include improvements such as barbecues, clothes lines, water tanks etc.

In order to be classified as “exempt development” work must adhere to the specific standards and specifications detailed in the Part 2 of the SEPP - http://www.legislation.nsw.gov.au/scanview/inforce/s/1/?EPITITLE=%22State%20Environmental%20Planning%20Policy%20(Exempt%20and%20Complying%20Development%20Codes)%202008%22&nohits=y
and must not impact on areas of environmental sensitivity.

Provided a property owner adheres strictly to these requirements, Council and neighbours have no legal right to challenge the carrying out of exempt development work.

Complying Development
The State Environmental Planning Policy (Exempt and Complying Development) Codes 2008 permits property owners to carry out some work to their properties through a fast track approval process without the requirement for public notification of plans (“complying development”).
It must be noted that the complying development provisions do not apply to any properties that have been included in the Heritage Map or the Foreshore Building Line Map, Riparian Land Map, Environmental Protection Area Map in Council’s LEP.
A property owner who plans to undertake work in this classification must ensure that the specifications and scope of work fit within the guidelines specified in Part 3 of the SEPP.
It is recommended that property owners seek professional advice about whether their proposed work will fall within the complying development category.

If a property owner wishes to begin complying development, it is necessary to apply to Council or an Accredited Certifier for a “Complying Development Certificate”.
If it is intended to make an application through Council, it is advisable to look at Council’s checklist for Complying Development applications on http://ecouncil.lanecove.nsw.gov.au/trim/InternetFormDocLink.asp?RecId=528046

The form required to apply for the Complying Development Certificate can be found on http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Application%20Approval%20Processes/Development%20Forms/DevelopmentForms.htm

If a Complying Development application is in order, Council or an Accredited Certifier must issue a Complying Development Certificate within 10 working days. This process can take place without any consultation with neighbours. However, work may not commence under the Complying Development Certificate unless nearby residents have been given at least 2 days notice that work is about to commence. On 5 March 2011 Councillors resolved to notify adjoining owners once a Complying Development Certificate had been issued by Council and this is now being implemented.

If Council or the Accredited Certifier refuses to issue a Complying Development Certificate on the grounds that plans do not fit within the specifications of Part 3 of the SEPP, it will be necessary for an applicant to submit a Development Application with Council. There is no right of appeal for refusal to issue a Complying Development Certificate.

Development Applications
If a proposed development cannot be classified as either exempt or complying or a complying development application is not permitted owing to the location of a property, it is necessary for a proposed development to be submitted as a Development Application, normally known as a “DA”.

Lodging a DA
Council’s website contains a useful checklist of the information that may be required to support a DA – it is advisable to consult this list and to have a pre-DA meeting with Council officers to avoid delays later in the assessment process http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Application%20Approval%20Processes/Development%20Forms/DevelopmentForms.htm

Once a DA is accepted over the counter by Council, it will be allocated a reference number. It is possible to track the progress of a DA using this reference number on Council’s DA Tracking facility http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Application%20Progress/DAsearchandenquiry.htm.

DA Notification and Assessment
The DA will then be assessed by Council officers for compliance with Council’s technical requirements whilst at the same time being notified to the public as Council officers consider appropriate. Notification procedures may vary depending upon Council’s assessment of the need for this to occur. However, Council is legally required to advise adjoining property owners and it routinely informs Councillors. The Greenwich Community Association also receives notification of DAs in the Greenwich area and copies of supporting plans. All members of the public may view the Council’s DA tracking facility if they are interested in the detail of a DA after it has been lodged with Council.

It is at this stage that submissions may be made in relation to a DA. Council stipulates that such submissions must be made within 14 days of notification but late submissions made before a decision has been reached will be accepted.
All submissions are made available for inspection on Council’s website.

Comments can also be addressed to relevant Councillors by both the applicant and those wishing to make submissions - contact details for Councillors can be accessed on http://ecouncil.lanecove.nsw.gov.au/trim/DocumentLink.asp?RecId=5966/05

Council is required to make a determination on a DA within 40 days of receipt of an application. However, if Council requires additional information from an applicant, the 40 day clock will stop until the required information has been provided.
The assessment process may sometimes require interaction between an applicant and parties opposed to a DA – this may include community consultation, site meetings, mediation.
Council officers will then prepare a report that has regard to comments from Council officers, from authorities that may have an interest in a DA eg RTA, and from community input.

DA Determination
Council staff members normally have delegated authority to make a determination on consent or refusal of a DA.. However, a decision will be made by Council’s Planning and Building Committee or by the full Council if the DA has been “called in” by a Councillor . A Councillor will normally call in a DA in response to notification by an applicant or by objectors who have expressed concerns about aspects of a DA.

The Planning and Building Committee will only make a determination if all members of the Committee agree unanimously with the recommendations of Council officers. Failing this, the matter will go to Council.

If a determination is to be made by Council, the DA item will appear on the Agenda for the Council meeting in which the DA is to be discussed. The Agenda will contain copies of reports by Council officers and the text of a proposed determination including, in the case of a recommended approval, conditions of consent – the Agenda and supporting papers can be accessed on http://www.lanecove.nsw.gov.au/Your%20Council/Meetings%20and%20Reports/Business%20Papers%20%26%20Minutes/BusinessPapersandMinutes.htm .

Proposed dates for Council meetings and meetings of the Planning and Building Committee can be located on http://www.lanecove.nsw.gov.au/Your%20Council/Meetings%20and%20Reports/Business%20Papers%20%26%20Minutes/BusinessPapersandMinutes.htm

Applicants and objectors have the right to address Council at Planning & Building Committee or for a maximum of 3 minutes before commencement of formal business at a Council Meeting. If it is preferred, a representative such as an architect or town planner can speak on behalf of any party – it is best to be brief and concise. Matters of detail should have been covered in earlier discussions with Councillors and staff.

The determination process may lead to refusal of a DA or consent with conditions – the scope of the conditions will depend upon the complexity of the DA and on the objections received.

If Council has not made a determination within 40 days (or for a longer period if the clock has stopped during the assessment process), it is deemed to have refused the application and the applicant has rights to appeal the refusal as if it had been formally refused.

Appeal against a grant or refusal of a DA
Under Section 82A of the Environmental Planning and Assessment Act 1979 an applicant has the right to ask Council to review a refusal but an objector does not have a right to seek a review of consent.

Again, the applicant can ask for the determination to be done by Council, rather than the staff under delegated authority.

If the request for review is unsuccessful, an applicant has the right to lodge an appeal with the Land and Environment Court within six months of the determination. In the case of residential DAs, objectors do not normally have the equivalent right to appeal against a consent determination – legal advice should be sought if this is planned.

Validity of a Complying Development Certificate or DA
A Complying Development Certificate or a DA is valid for a maximum of 5 years from date of determination unless any works have commenced before that time.

Modification of Plans in Complying Development Certificates and DAs
Sometimes it will become obvious that there are errors in approved plans or that the original plans require modification for reasons that were not contemplated at the time of application. An application to amend plans must be submitted to Council as a Section 96 application.
For details of Council requirements refer to
http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Application%20Approval%20Processes/Section%2096%20Midification/Section96Modification.htm

In cases involving minor errors or where modifications will have minimal environmental impact , Council (or the Private Certifying Authority) may approve the Section 96 application without public notification. In other cases, Council may require public notification.

THE CONSTRUCTION PHASE

Exempt Development
The conditions relating to the construction phase for exempt developments are set out in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – refer to Part 1 Division 2 Clause 1.16.
Works must comply strictly with the specifications listed for the specific work – these specifications can be found in Part 2 Division 1.

As has been stated above, Council approval for such work is not necessary and neighbours are not required to be consulted or notified provided the code is followed.

Complying Development
The conditions relating to the construction phase of complying development for houses are set out in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
Part 3 Division 2 details specifications for specific aspects of the work eg building height, landscaping, garages.
Part 1 Division 2 and Part 3 Division 3 contain the more general requirements as to the initiation and management of the construction phase.

Work cannot commence until a Complying Development Certificate has been obtained from Council or an Accredited Certifier.
Neighbours within 20m of the property must be given 2 days notice that work is to commence.

Development Applications
After a DA has been approved, it is necessary to obtain a Construction Certificate from Council or an Accredited Certifier. The purpose of this certificate, among other things, is to ensure that the final plans comply with Council’s consent conditions and with the standards of the Building Code of Australia and other relevant authorities.

If the Construction Certificate is issued by an Accredited Certifier, it is necessary to lodge copies of all documents with Council within 2 days of the signing of the Construction Certificate.

When a start date for work has been established, it is necessary to give 2 days notice to Council by lodging a Notice of Commencement. This notice must specify the Certifier who will be supervising the construction process.

It will be the responsibility of the Certifier to monitor the entire building phase and to issue an Occupation Certificate at the conclusion of the process. It is illegal to reside in the property until the Occupation Certificate (final or interim) has been issued.
Further detail about this stage of the development process and links to relevant forms can be found on
http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Development%20Application%20Approval%20Processes/Construction%20Certificates/Construction%20Certificates.htm

Risks of Non-compliance with Codes or DA Conditions
If Council is concerned that applicable codes or development consent conditions are not being complied with, it has a range of sanctions available to it, including the demolition of illegal works.
If a resident suspects that illegal work is taking place, they may contact Council by phone or by lodging an email complaint.
Lane Cove Council views non –compliance seriously – for further information on Council’s policy and the reporting of non-compliant work refer to http://www.lanecove.nsw.gov.au/Council%20Services/Development%20Control/Illegal%20Building%20Works/IllegalBuildingWork.htm.

7 August 2011