Land rezoning is a formal process that amends the planning controls relating to a parcel(s) of land. Rezoning land can result in an increase or decrease to the range of permissible uses on the subject land or change the development standards that are applicable. Land can only be rezoned through a formal amendment to the current statutory planning controls which is the Willoughby Local Environmental Plan 2012.
What is a Local Environmental Plan (LEP)?
A Local Environmental Plan (LEP) is prepared by Council to guide planning decisions for the local government area and is principally made up of a written instrument and associated maps. Through zoning and development standards, it allows Council to supervise the ways in which land is used. Specifically, the LEP states whether development:
- is permissible on the land;
- is subject to specific restrictions, including controls on height, minimum land area and floor space;
- requires consent of Council.
An LEP is prepared in accordance with the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), and Environmental Planning & Assessment Regulations 2000 and is approved by the Minister for Planning and Infrastructure.
LEPs apply to a particular area, generally the whole, or part of a local government area. An LEP applying to a whole local government area is referred to as the principal LEP. The process for making a principal LEP and for amending a principal LEP is the same. That is, in order to amend a principal LEP, it is necessary to make another LEP. For convenience, an LEP being made to amend a principal LEP is referred to as an amending LEP.
Planning Proposal to amend the LEP
The preparation of a planning proposal is the first step in making an amendment to the existing LEP. A planning proposal is a document that explains the intended effect of, and justification for, the proposed amendment. Under the new legislation, Council must prepare and submit a planning proposal to the Department of Planning and Infrastructure for consideration of an amendment to the LEP.
A planning proposal must include the following:
- A statement of objectives and intended outcomes of the proposal,
- An explanation of the provisions that are to be included in the proposal,
- A justification of the objectives and outcomes, including the process of how these are to be implemented,
- Maps where relevant, to identify the intent of the planning proposal and the area to which it applies
- Details of the community consultation that will be undertaken
- Project timeline
A planning proposal must be prepared in accordance with Section 55 of the Environmental Planning and Assessment Act 1979 and the Department of Planning and Infrastructure’s Guide to Preparing Planning Proposals.
What is the first step in making a Planning Proposal
It should be noted that applications to rezone land are generally not encouraged by Council and should only be submitted in the following circumstances:
- Where land cannot be reasonably developed or used under the existing zoning, or
- Where development of land in accordance with the existing zone would not be in the public interest
The first step in the process is to talk to a Planner in Council’s Strategic Planning Branch. Staff can explain the process and provide advice specific to the proposal. Strategic Planning Staff can be contacted on 9777 1000.
A planning proposal must be formally considered at a Council meeting. Council officers will make a report to Council on the merits of the proposal. Council does not have to support applications for rezoning of land. Similarly, a Council resolution to prepare a planning proposal or an amendment to the LEP does not necessarily guarantee that the proposal or rezoning will proceed.
If Council agrees to proceed with the proposal to rezone land, Council must resolve to support the planning proposal and to forward it the Minister for Planning and Infrastructure for a “Gateway Determination”.
The pre-Gateway review mechanism allows proponents to request an independent body review decisions in relation to proposed amendments to LEPs. If a proponent (eg developer, landowner) has requested that Council prepare a planning proposal for a proposed instrument, it may ask for a pre-Gateway review if:
- Council has notified the proponent that the request to prepare a planning proposal is not supported; or
- Council has failed to indicate its support 90 days after the proponent submitted a request, accompanied by the required information.
The Environmental Planning and Assessment Regulation 2000 requires Council to notify a proponent when it decides not prepare a planning proposal. The proponent of the proposed instrument then has 40 days from notification to request a review of Council’s decision. Further information on how to make a Pre-Gateway review can be found at the NSW Planning & Infrastructure website, Guide to Preparing Local Environmental Plans.
The Gateway Determination is a state government checkpoint for planning proposals before significant resources are committed to carrying out out investigative research, preparatory work and consultation with the community. The Department of Planning and Infrastructure’s LEP Review Panel will make a recommendation to the Minister (or delegate) as to whether there is merit in the proposal proceeding or otherwise. The Minister (or delegate) will consider the recommendation of the LEP Review Panel and decide whether to give a Gateway determination to allow the proposal to proceed. The Gateway determination will indicate the following:
- Whether the planning proposal should proceed (with or without variation).
- Whether the planning proposal should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal).
- Whether any studies are required and if necessary the scope of these additional studies
- The community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements).
- Any consultation required with State or Commonwealth Authorities.
- Whether a public hearing is to be held into the matter by the Panel Assessment Commission or other specified person or body is required.
- The times within which the various stages of the process for making of the proposed LEP are to be completed, and
- Whether the function of making the LEP is exercised by the Minister for Planning and Infrastructure or delegated to Council or the relevant planning authority (RPA).
Review of Gateway Determination
A Council or proponent may request the Minister (or delegate) to alter a Gateway determination when a Gateway determination is made that:
a. the planning proposal should not proceed
b. the planning proposal should be re-submitted to the Gateway, or
c. imposes requirements (other than consultation requirements) or makes variations tothe proposal that the proponent or Council thinks should be reconsidered.
Further information on requesting a review of a Gateway determination is provided within Guide to Preparing Local Environmental Plans.
If the Gateway Determination is that the planning proposal has merit and should proceed, the proposal will be publicly exhibited as specified by the Gateway Determination to obtain the views of the community and referred to State or Commonwealth Public Authorities.
Council will be advised through the Gateway Determination of the appropriate community consultation process for the proposal. This will involve public exhibition of the proposal for either 14 days (for low impact proposals) or 28 days (for other proposals). Council may choose to have a longer exhibition period if in its view additional consultation is warranted. During the exhibition period any person can make a submission concerning the proposal. A public hearing may also be arranged, if the issues raised in submissions are considered by Council to justify a hearing, and a report will be prepared and made public.
Please note that under Section 73A of the Environmental Planning and Assessment Act 1979, some minor changes (such as misdescriptions of property or incorrect map references) to the Council LEP can be made without public exhibition if the Minister agrees. Amendments may also be made without public exhibition that the Minister considers will not have any significant adverse impact on the environment or adjoining land.
Council will notify the exhibition of a planning proposal in accordance with Part 5.5.2of the Department of Planning and Infrastructure’s Guide to Preparing Local Environmental Plans.
Council’s notification will include:
i) Where the planning proposal involves a site specific change, the owners of property covered by the planning proposal
ii) Within Willoughby City, the owners of property adjoining or neighbouring the land covered by the planning proposal who in the opinion of the responsible Council Officer may be affected by the planning proposal if adopted
iii) Depending upon the subject matter of the planning proposal, local organisations that might have an interest in the planning proposal
iv) A notice of the public exhibition in the North Shore Times
v) A notice on the Council web page
The following planning proposals will not be notified to individual owners in accordance with i) and ii), but will be advertised in the North Shore Times as required by the EPA Act, and on Council’s website:
- Amendments to the existing LEP which affect the whole of the city or, in the opinion of the responsible Council Officer, affect a major portion of the City (generally more than 2000 properties);
- Amendments to the existing LEP which do not change existing policy, which involve editing changes, changes to definitions or rectifying drafting errors.
In the case of a planning proposal affecting land that adjoins the boundary of the City, the neighbouring Council will be notified.
Important Information about making submissions:
Read Council’s Privacy Statement with regard to submissions to Council.
Political Donations and Expenditures
When making a submission, you should also be aware of disclosure requirements for Political Donations and Gifts.
All submissions received during the public exhibition will be considered and reported to Council.
Council is not bound to adopt or support a submission.
Submissions received outside the period will not be considered unless the correspondent has requested an extension of the time within the notification period and received approval for the extension. Reasons for seeking the extension must be provided.
The Department of Planning and Infrastructure displays Willoughby City Planning Proposals currently on exhibition.
Submissions may be made by e-mail, facsimile or mail. Anonymous submissions will be given little or no weight.
Once Council has considered the planning proposal and all submissions concerning the proposal made during the exhibition, any variations considered necessary can be made by Council. The final proposal will then be forwarded to the Department of Planning and Infrastructure where the legal instrument will be drafted for the Minister's approval.
With the Minister’s approval, the amending LEP becomes law and is published on the NSW Legislation website. The Minister may:
- Make the full plan
- Vary the plan
- Decide not to proceed with the plan
- Defer certain matters from the plan
- Delegate the making of the plan to the Director General of the Department
If the Council or Minister decide not to proceed with a plan, there is no right of appeal to the Land and Environment Court.
Online tracking of a Planning Proposal
An online tracking system is available for any person to follow the process of a Planning Proposal once it has been submitted to the Department of Planning and Infrastructure by the Council.
What information needs to be submitted with a Planning Proposal Application?
A planning proposal application to rezone land must be accompanied by a completed Council application form as well as additional information to support the proposal.
Planning proposal applications will require external planning expertise on behalf of the applicant. It is recommended that a town planning consultant be engaged for the preparation of planning proposal applications regardless of whether the proposal is of a minor or major nature. Other specialist consultants may also be needed to provide technical input to the proposal.
The Planning Proposal Application and Checklist form is available online.
What matters does Council consider when assessing a planning proposal application request?
The range of matters considered by Council in the assessment of a rezoning application includes, but is not limited to, the following:
- The objectives of the Environmental Planning and Assessment Act 1979 (EP&A Act, 1979),
- Any relevant State Environmental Planning Policies (SEPPs), deemed SEPPs, Departmental Circulars or Ministerial Directions under s117 of the EP&A Act, 1979
- The provision of the Willoughby City Strategy,
- The relevant objectives and provisions of the Willoughby Local Environmental Plan 2012,
- The provisions of Willoughby Development Control Plan,
- Any relevant non-statutory planning document or policy adopted or exhibited by Council (structure plans, concept plans and the like),
- Any State Government strategies such as the Metropolitan Plan and the Draft Inner North Subregional Strategy,
- Whether the proposed rezoning is consistent with both the State Government’s and Council’s long-term strategic directions and goals for the area,
- The environmental impacts of the proposal,
- Whether site contamination, flooding, bushfire or other constraint may restrict the proposed land use of the property,
- Any precedent that may be set as the result of the proposed rezoning,
- Any submissions from the public, public authorities and/or advice obtained from the various Divisions within Council.
How long does it take for a planning proposal / rezoning application to be approved?
The process for the preparation and assessment of a planning proposal / LEP amendment differs for each proposal, depending on the degree of complexity or issues involved. The Department of Planning and Infrastructure has released benchmark timeframes for approval following a Gateway Determination for the main types of LEPs where they are consistent with the State’s strategic planning framework:
- 3 months for administrative changes and errors
- 6 months for minor spot rezonings
- 12 – 18 months for major land release and urban renewal
- 24 months for principal LEPs
The timeframe can be longer for complex or controversial issues, or for proposals that are not consistent with the State planning framework.
The relevant fees for planning proposals are set out in the Environmental Services Fees and Charges.
If my planning proposal application is refused, will my fee be refunded?
No. There is no refund of fees for an unsuccessful planning proposal application.
What is the role of the public in the planning proposal process?
Once a planning proposal application has been passed by the Gateway, Council will be advised of the relevant community consultation that is to occur. A proposal will be publicly exhibited for a period of either 14 or 28 days, depending on the type of proposal, during which the public can make written submissions in response to the proposal. In addition to placing an advertisement in the local press and on Council’s website advising the community of the exhibition, Council will also notify in writing property owners whom the responsible Council officer considers may be affected by the planning proposal. A public hearing may also be arranged at the discretion of Council or the Minister in response to any issue.
Council must take into consideration submissions from the public when it makes a decision whether or not to proceed with or amend the planning proposal.
Disclosure of Political Donations
All planning proposals and draft LEPs must comply with NSW State Law regarding Political Donations. Under s147 of the EP&A Act 1979, all relevant political donations and gifts must be disclosed by individuals or entities with a relevant financial interest when a planning application is made. A planning application includes a formal request to Council to initiate the making of a LEP. Council has further information on the disclosure of political donations and gifts.
The NSW Department of Planning and Infrastructure have further information about the process.
Council’s Strategic Planning Branch can be contacted on 9777 1000.