Part 3
Part 3 Planning instruments
Planning instruments
pt 3, hdg: Ins 2017 No 60, Sch 3.2 [1]. pt 3, note: Ins 2017 No 60, Sch 3.2 [1]. Division 3.1 Strategic planning div 3.1, hdg: Ins 2017 No 60, Sch 3.2 [2]. div 3.1 (previously pt 3B): Renumbered 2017 No 60, Sch 3.2 [3]. 3.1 Definitions (cf previous s 75AA) (1) In this Division— district means— (a) a city in the Six Cities Region, or (b) a part of a region declared to be a district under section 3.2(b). district strategic plan means a district strategic plan made under this Division. dwelling means a room or suite of rooms occupied or used or so constructed or adapted to be capable of being occupied or used as a separate domicile. housing target means a target for a district for the number of net additional dwellings required for each local government area in the district for the next 5, 10 and 20 years, and may include a target for development consents to be granted to achieve the net additional dwellings. local strategic planning statement means a local strategic planning statement made under this Division. region means— (a) the Six Cities Region, or (b) any other area declared to be a region under section 3.2(a). regional strategic plan means a regional strategic plan made under this Division. strategic plan means a regional strategic plan or a district strategic plan. (2) For the purposes of this Division, preparing or making a strategic plan or local strategic planning statement includes preparing or making a strategic plan or local strategic planning statement to amend, replace or repeal a strategic plan or local strategic planning statement. s 3.1 (previously s 75AA): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]; 2022 No 8, Sch 4.1[7]; 2023 No 52, Sch 1[5]–[7]. 3.2 Declaration of regions and districts (cf previous s 75AB) The Minister may, by order published on the NSW legislation website, declare— (a) any area of the State (other than the Six Cities Region) to be a region for the purposes of this Division, and (b) any part of the Six Cities Region or other region to be a district for the purposes of this Division. s 3.2 (previously s 75AB): Renumbered 2017 No 60, Sch 3.2 [4]. 3.3 Regional strategic plans—preparation and content (1) The Planning Secretary may, or must if directed to do so by the Minister, prepare a draft regional strategic plan for a region. (2) A draft regional strategic plan must include or identify the following— (a) the basis for strategic planning in the region, having regard to economic, social and environmental matters, (b) a vision statement and objectives consistent with the vision statement, (c) strategies and actions for achieving the objectives, (d) the basis on which the Planning Secretary is to monitor and report on the implementation of the actions, (e) any other matters the Planning Secretary considers relevant to planning for the region. (3) In preparing a draft regional strategic plan, the Planning Secretary must have regard to the following— (a) State environmental planning policies that apply to the region, (b) any other strategic plan that applies to the region, (c) any 20-year State infrastructure strategy, 5-year infrastructure plan or sectoral State infrastructure strategy statement under the Infrastructure NSW Act 2011 , Part 4, (d) the State disaster mitigation plan, to the extent relevant, and any relevant disaster adaptation plan under the NSW Reconstruction Authority Act 2022 , (e) any other relevant government policies and plans in force at the time the draft plan is prepared, (f) any matter the Minister directs the Planning Secretary to have regard to in preparing the draft plan, (g) any other matters the Planning Secretary considers relevant. s 3.3 (previously s 75AC): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2022 No 8, Sch 4.1[8]; 2022 No 80, Sch 5.1[1]. Subst 2023 No 52, Sch 1[8]. 3.4 District strategic plans—preparation and content (1) The Planning Secretary must prepare a draft district strategic plan for each district in the Six Cities Region. (2) The Planning Secretary may, or must if directed to do so by the Minister, prepare a draft district strategic plan for a district in a region outside the Six Cities Region. (3) A draft district strategic plan must include or identify the following— (a) the basis for strategic planning in the district, having regard to economic, social and environmental matters, (b) the planning priorities for the district that are consistent with the objectives, strategies and actions specified in the applicable regional strategic plan, (c) the actions required for achieving the planning priorities, (d) the basis on which the Planning Secretary is to monitor and report on the implementation of the actions, (e) areas of State, regional or district significance, including priority growth areas, (f) any other matters the Planning Secretary considers relevant to planning for the district. (4) The planning priorities referred to in subsection (3)(b)— (a) must include housing targets, if the district is in the Six Cities Region, and (b) may include housing targets, if the district is outside the Six Cities Region. (5) In preparing a draft district strategic plan, the Planning Secretary must have regard to the following— (a) any environmental planning instruments that apply to the district, (b) any other strategic plan that applies to the district or an area adjoining the district, (c) any 20-year State infrastructure strategy, 5-year infrastructure plan or sectoral State infrastructure strategy statement under the Infrastructure NSW Act 2011 , Part 4, (d) the State disaster mitigation plan, to the extent relevant, and any relevant disaster adaptation plan under the NSW Reconstruction Authority Act 2022 , (e) any other relevant government policies and plans in force at the time the draft plan is prepared, (f) any matter the Minister directs the Planning Secretary to have regard to in preparing the draft plan, (g) any other matters the Planning Secretary considers relevant. (6) If there is no regional strategic plan for a part of the district, the draft district strategic plan may identify for that part of the district matters that may be identified in a regional strategic plan, until there is a regional strategic plan. (7) This section does not prevent— (a) the Planning Secretary from issuing housing targets for a district before a draft district strategic plan is publicly exhibited, or (b) changes being made to the housing targets before the district strategic plan is made under section 3.6 or 3.6A. s 3.4 (previously s 75AD): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2022 No 8, Sch 4.1[8]–[10]; 2022 No 80, Sch 5.1[2]. Subst 2023 No 52, Sch 1[8]. 3.5 Making of regional strategic plans (1) The Planning Secretary may, or must if directed to do so by the Minister, submit a draft regional strategic plan for a region to the Minister. (2) The Minister may— (a) make a regional strategic plan in the form in which it is submitted or with the modifications the Minister considers appropriate, or (b) decide not to make the draft regional strategic plan. (3) The document entitled Greater Sydney Region Plan—A Metropolis of Three Cities continues to be taken to be the regional strategic plan made under this division for the Six Cities Region, but has effect only in relation to the designated Sydney districts. (4) As soon as practicable after 1 January 2024, the Planning Secretary must— (a) review the regional strategic plan referred to in subsection (3), and (b) submit a draft regional strategic plan that applies to the whole of the Six Cities Region to the Minister. (5) The Planning Secretary must review a regional strategic plan for the Six Cities Region, other than the regional strategic plan referred to in subsection (3), every 5 years after it is made by the Minister. (6) The Planning Secretary must review a regional strategic plan for a region outside the Six Cities Region as directed by the Minister. (7) A failure to comply with a provision of this section does not affect the validity of a regional strategic plan, including the continuing validity of an existing regional strategic plan. s 3.5 (previously s 75AE): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 66, Sch 1 [2]; 2022 No 8, Sch 4.1[11] [12]. Subst 2023 No 52, Sch 1[8]. 3.6 Making of district strategic plans for districts in Six Cities Region (1) The Planning Secretary may make a district strategic plan for a district in the Six Cities Region. (2) The Planning Secretary must review a district strategic plan for a district in the Six Cities Region every 5 years. s 3.6 (previously s 75AFI): Renumbered 2017 No 60, Sch 3.2 [4]. Subst 2023 No 52, Sch 1[8]. 3.6A Making of district strategic plans for districts outside Six Cities Region (1) The Planning Secretary may, or must if directed to do so by the Minister, submit a draft district strategic plan for a district outside the Six Cities Region to the Minister. (2) The Minister may— (a) make a district strategic plan in the form in which it is submitted or with the modifications the Minister considers appropriate, or (b) decide not to make the draft district strategic plan. s 3.6A: Ins 2023 No 52, Sch 1[8]. 3.7 Publication and commencement of strategic plans (cf previous s 75AG) A strategic plan— (a) must be published on the NSW planning portal, and (b) commences on the date of publication or a later date specified in the plan. s 3.7 (previously s 75AG): Renumbered 2017 No 60, Sch 3.2 [4]. 3.8 Implementation of strategic plans (cf previous s 75AI) (1) In preparing a draft district strategic plan, the Planning Secretary is to give effect to any regional strategic plan applying to the region in respect of which the district is part. (2) In preparing a planning proposal under section 3.33, the planning proposal authority is to give effect— (a) to any district strategic plan applying to the local government area to which the planning proposal relates (including any adjoining local government area), or (b) if there is no district strategic plan applying to the local government area—to any regional strategic plan applying to the region in respect of which the local government area is part. (3) As soon as practicable after a district strategic plan is made, the council for each local government area in the district to which the plan applies must review the local environmental plans for the area and prepare such planning proposals under section 3.33 as are necessary to give effect to the district strategic plan. (4) In addition to the requirement under subsection (3), the council for each local government area in the Six Cities Region must, on the making of a district strategic plan that applies to that area, report to the Planning Secretary— (a) on the review by the council of the local environmental plans for the area, and (b) on the preparation of planning proposals under section 3.33 to give effect to the district strategic plan. s 3.8 (previously s 75AI): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2023 No 52, Sch 1[9] [10]. 3.9 Local strategic planning statements of councils (1) The council of an area must prepare and make a local strategic planning statement and review the statement at least every 7 years. (2) The statement must include or identify the following— (a) the basis for strategic planning in the area, having regard to economic, social and environmental matters, (b) the planning priorities for the area that are consistent with any strategic plan applying to the area and (subject to any such strategic plan) any applicable community strategic plan under section 402 of the Local Government Act 1993 , (c) the actions required for achieving those planning priorities, (d) the basis on which the council is to monitor and report on the implementation of those actions. (3) The statement for an area that is divided into wards may deal separately with each ward. In that case, the councillors of a ward are to be given a reasonable opportunity to participate in the preparation of the provisions of the statement that deal with the ward and those provisions are required to be— (a) endorsed by those councillors as being consistent with the strategic plans referred to in subsection (2)(b) as they relate to the ward, or (b) if not so endorsed by those councillors—so endorsed at the request of the council by the Planning Secretary. However, the Minister may direct that the endorsement of those provisions is not required in specified circumstances (for example, because of the small number of persons living in the ward). (3A) The council for an area that is in the Six Cities Region must not make a local strategic planning statement unless the Planning Secretary has advised the council in writing that the Planning Secretary supports the statement as being consistent with the applicable regional and district strategic plans. (4) The Planning Secretary may issue requirements with respect to the preparation and making of local strategic planning statements (including requirements with respect to the participation of councillors of a ward). (5) A local strategic planning statement must be published on the NSW planning portal. Note. See section 3.33(2) in relation to the requirement for the planning proposal for a proposed local environmental plan to address whether the proposal will give effect to the local strategic planning statement. s 3.9: Ins 2017 No 60, Sch 3.1 [21]. Am 2018 No 66, Sch 1 [3] [4]; 2023 No 52, Sch 1[11]–[13]. 3.10 Dispensing with conditions precedent to making strategic plans (cf previous s 75AJ) (1) For the purposes of doing any one or more of the following, a strategic plan may be made without compliance with the conditions precedent under this Act to the making of strategic plans— (a) to correct an obvious error or misdescription, (b) to make changes that will not have any significant adverse impact on the environment or adjoining land, (c) to make provision for matters that are, in the opinion of the Minister, of State or regional significance or of significance to a district (but only if the proposed plan has been publicly exhibited for the period determined by the Minister). (2) The publication of a strategic plan made in reliance on subsection (1) is to contain a statement that it is so made. s 3.10 (previously s 75AJ): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [8]. 3.11 Legal proceedings relating to strategic planning (cf previous s 75AK) (1) In this section— legal proceedings means proceedings for an order under Division 9.5 or any other kind of legal proceedings (other than criminal proceedings). (2) Legal proceedings (other than those instituted by or with the approval of the Minister) in relation to the validity of a strategic plan or local strategic planning statement cannot be instituted after the period of 3 months following the publication of the strategic plan or local strategic planning statement on the NSW planning portal. (3) The only requirement of or made under this Act in relation to a strategic plan or local strategic planning statement is the requirement to publicly exhibit the draft plan or statement. (4) Nothing in this Division prevents a local environmental plan from being made or invalidates the plan once it is made. (5) This section applies despite any other provision of this Act or any other Act or law. s 3.11 (previously s 75AK): Renumbered 2017 No 60, Sch 3.2 [4]. 3.12 Regulations relating to strategic planning (cf previous s 75AL) The regulations may make provision for or with respect to the following— (a) the review of strategic plans or local strategic planning statements, (b) the functions of the Planning Secretary under this division, (c) the form and content of strategic plans or local strategic planning statements (including the standardisation of the provisions of strategic plans or local strategic planning statements), (d) requirements for the submission of reports and documents relating to the preparation and review of strategic plans or local strategic planning statements, (e) (f) any other matter relating to the strategic planning framework under this Division (including, without limitation, the preparation, making and online delivery of strategic plans or local strategic planning statements). s 3.12 (previously s 75AL): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2023 No 52, Sch 1[14]. Division 3.2 Environmental planning instruments—general div 3.2, hdg (previously pt 3, Div 1, heading): Renumbered 2017 No 60, Sch 3.2 [6]. 3.13 Making of environmental planning instruments (cf previous s 24) (1) Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act. (2) Environmental planning instruments may be made— (a) under Division 3.3 (called a State environmental planning policy or SEPP), or (b) under Division 3.4 (called a local environmental plan or LEP). s 3.13(previously s 24): Renumbered 2017 No 60, Sch 3.2 [4]. 3.14 Contents of environmental planning instruments (cf previous s 26) (1) Without affecting the generality of section 3.13 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following— (a) protecting, improving or utilising, to the best advantage, the environment, (b) controlling (whether by the imposing of development standards or otherwise) development, (c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993 , a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974 , a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section, (d) providing, maintaining and retaining, and regulating any matter relating to, affordable housing, (e) protecting or preserving trees or vegetation, (e1) protecting and conserving native animals and plants, including threatened species and ecological communities, and their habitats, (f) controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e), (g) controlling advertising, (h) such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act. (1A)–(3) (3A) An environmental planning instrument may make provision for any zoning of land or other provision to have effect only for a specified period or only in specified circumstances. (4) An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision— (a) for authorising the council (or other person or body) to determine the trees or other vegetation included in or excluded from the relevant provisions, and (b) for requiring a permit, approval or other authorisation to remove or otherwise affect trees or other vegetation that is granted by the council (or other person or body), and (c) for an appeal to the Court against a refusal to grant any such permit, approval or other authorisation. Note— The Interpretation Act 1987 , sections 5(6) and 42(2) operate to provide that an environmental planning instrument may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) do both of those things in combination. s 3.14 (previously s 26): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2025 No 71, Sch 1[41]. 3.15 Owner-initiated acquisition of land reserved for public purposes (cf previous s 27) (1) An environmental planning instrument that reserves land for use exclusively for a purpose referred to in section 3.14(1)(c) must specify an authority of the State that will be the relevant authority to acquire the land if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 . (2) Section 21 of the Land Acquisition (Just Terms Compensation) Act 1991 applies for the purposes of determining whether an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 3.14(1)(c). (3) An environmental planning instrument (whenever made) is not to be construed as requiring an authority of the State to acquire land, except as required by Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 . (4) Subsection (3) applies despite— (a) any provision of an environmental planning instrument (whenever made) to the contrary, or (b) the service of a notice to acquire the land on an authority of the State on or after the day on which notice was given in Parliament for leave to introduce the Bill for the Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006 . s 3.15 (previously s 27): Renumbered 2017 No 60, Sch 3.2 [4]. 3.16 Suspension of laws etc by environmental planning instruments (cf previous s 28) (1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made. (2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument. (3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision. (4) Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister. (5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence. (6) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900 . s 3.16 (previously s 28): Renumbered 2017 No 60, Sch 3.2 [4]. 3.17 Designated development: declaration by environmental planning instruments (cf previous s 29) An environmental planning instrument may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development for the purposes of this Act. s 3.17 (previously s 29): Renumbered 2017 No 60, Sch 3.2 [4]. 3.18 Consents and concurrences (cf previous s 30) (1) Without limiting the generality of section 3.14(1)(b), an environmental planning instrument may provide that development specified therein— (a) may be carried out without the necessity for consent under this Act being obtained therefor, or (b) may not be carried out except with consent under this Act being obtained therefor. (2) Where provision is made in accordance with subsection (1)(b), the instrument may provide that a development application in respect of development specified in the instrument shall not be determined by the granting of consent under this Act, except with the concurrence of such Minister or public authority as is specified in the instrument to the carrying out of the development. (3) An environmental planning instrument which makes provision in accordance with subsection (2) shall state the matters which shall be taken into consideration in deciding whether concurrence should be granted. (4), (5) s 3.18 (previously s 30): Renumbered 2017 No 60, Sch 3.2 [4]. 3.19 Prohibitions (cf previous s 31) Without limiting the generality of section 3.14(1)(b), an environmental planning instrument may provide that development specified therein is prohibited. s 3.19 (previously s 31): Renumbered 2017 No 60, Sch 3.2 [4]. 3.20 Standardisation of environmental planning instruments (cf previous s 33A) (1) The Governor may, by order published on the NSW legislation website, prescribe the standard form and content of local environmental plans or other environmental planning instruments (a standard instrument ). (2) An environmental planning instrument may be made in the form of— (a) a declaration that the applicable mandatory provisions of a standard instrument are adopted, and (b) the prescription of the matters required to be prescribed for the purposes of the application of the mandatory provisions of the standard instrument (such as the adoption of land zoning or other maps), and (c) the prescription of any other matters permitted to be prescribed by an environmental planning instrument, including non-mandatory provisions of the standard instrument (with or without modification) or additional provisions. (3) When an environmental planning instrument is made with such a declaration, the instrument has the form and content of the applicable mandatory provisions of the standard instrument and the matters so prescribed. (4) If the mandatory provisions of a standard instrument so adopted are amended by a further order under subsection (1) or by an Act after they are adopted, the environmental planning instrument is taken (without further amendment) to adopt the amended provisions of the standard instrument on and from the date the amendment to the standard instrument takes effect. (5) The order that amends a standard instrument may make provision of a savings or transitional nature consequent on the amendment of the standard instrument. (6) Where a standard instrument has been adopted, the provisions of the environmental planning instrument (other than the mandatory provisions of the adopted standard instrument) may be amended from time to time by another environmental planning instrument or in accordance with any Act. (7) A standard instrument may— (a) provide that a provision is a mandatory provision only in the circumstances specified in the instrument, and (b) contain requirements or guidance as to the form or content of a non-mandatory provision. (8) The adoption of the provisions of a standard instrument in an environmental planning instrument is taken to be a matter of State environmental planning significance for the purposes of this Act. (8A) An environmental planning instrument may be made under this Part without compliance with the provisions of this Act relating to the conditions precedent to the making of the instrument if— (a) the instrument adopts the provisions of a standard instrument for the purposes of replacing instruments that apply to the land concerned (being existing instruments that do not adopt the provisions of a standard instrument), and (b) the Minister is of the opinion that the replacement instrument does not make any substantial changes to the general effect of the existing instrument or instruments. (9) Subject to this Act and the regulations, the form and subject-matter of an environmental planning instrument is (if there is no applicable standard instrument) to be as determined by the Minister. (10) In this section— form includes structure. s 3.20 (previously s 33A): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [9]. 3.21 Review of environmental planning instruments (cf previous s 73) (1) The Planning Secretary shall keep State environmental planning policies and councils shall keep their local environmental plans and development control plans under regular and periodic review for the purpose of ensuring that the objects of this Act are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible. (2) Every 5 years following such a review, the Planning Secretary is to determine whether relevant State environmental planning policies should be updated and a council is to determine whether relevant local environmental plans should be updated. s 3.21 (previously s 73): Renumbered 2017 No 60, Sch 3.2 [13]. Am 2018 No 25, Sch 4 [5]. 3.22 Expedited amendments of environmental planning instruments (cf previous s 73A) (1) An amending environmental planning instrument may be made under this Part without compliance with the provisions of this Act relating to the conditions precedent to the making of the instrument if the instrument, if made, would amend or repeal a provision of a principal instrument in order to do any one or more of the following— (a) correct an obvious error in the principal instrument consisting of a misdescription, the inconsistent numbering of provisions, a wrong cross-reference, a spelling error, a grammatical mistake, the insertion of obviously missing words, the removal of obviously unnecessary words or a formatting error, (b) address matters in the principal instrument that are of a consequential, transitional, machinery or other minor nature, (c) deal with matters that the Minister considers do not warrant compliance with the conditions precedent for the making of the instrument because they will not have any significant adverse impact on the environment or adjoining land, (c1) deal with matters the NSW Reconstruction Authority considers necessary to give effect to the NSW Reconstruction Authority Act 2022 , (d) deal with matters the Housing Delivery Authority considers reasonably necessary to enable the carrying out of development declared to be State significant development under section 4.36(3). (2) A reference in this section to an amendment of an instrument includes a reference to the amendment or replacement of a map adopted by an instrument. (2A) For the purposes of subsection (1)(c1), the Minister may direct that the NSW Reconstruction Authority is— (a) the planning proposal authority for this Part, or (b) a local plan-making authority for section 3.31. (2B) For subsection (2A), the Minister’s direction may provide that the NSW Reconstruction Authority must exercise the functions of a planning proposal authority or local plan-making authority— (a) for a particular period or for particular stages of development, or (b) only in relation to certain matters. s 3.22 (previously s 73A): Renumbered 2017 No 60, Sch 3.2 [13]. Am 2018 No 25, Sch 4 [10]; 2018 No 66, Sch 1 [5]; 2022 No 80, Sch 5.1[3] [4]; 2025 No 71, Sch 1[42]. 3.23 Public access to environmental planning instruments and related documents (cf previous s 33C) For the purpose of facilitating electronic or other public access to environmental planning instruments and any development control plans, contributions plans or other documents under this Act— (a) the Minister may determine standard technical requirements with respect to the preparation of those instruments, plans or other documents and of the maps or other documents that are referred to in (or adopted under) them, and (b) a council is to provide the Planning Secretary, when requested, with copies and electronic files (in a specified format) of any such instruments, plans, maps or other documents prepared or held by the council. s 3.23 (previously s 33C): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]. 3.24 Publication, amendment and repeal of environmental planning instruments (cf previous s 34) (1)–(4) (5) An environmental planning instrument shall— (a) be published on the NSW legislation website, and (b) commence on and from the date of publication or a later date specified in the instrument. (5A) Subsection (5) does not prevent an environmental planning instrument from specifying different days for the commencement of different provisions of the instrument. (5B) Neither the whole nor any part of an environmental planning instrument is invalid merely because the instrument is published on the NSW legislation website after the day on which one or more of its provisions is expressed to commence. In that case, the provisions concerned commence on and from the day the instrument is published on the NSW legislation website, instead of on and from the earlier day. (6)–(8) (9) An environmental planning instrument shall be deemed to have been published on the NSW legislation website notwithstanding that any planning map or other instrument or material referred to, embodied or incorporated in the environmental planning instrument is not so published. (10) (11) An environmental planning instrument may be amended or repealed by a subsequent environmental planning instrument, whether of the same or a different type. Note. An environmental planning instrument is an instrument for the purposes of the Interpretation Act 1987 , and accordingly standard provisions under that Act applying to statutory instruments apply to environmental planning instruments. s 3.24 (previously s 34): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [11]. 3.25 Special consultation procedures concerning threatened species (cf previous s 34A) (1) In this section, the relevant authority means— (a) in the case of a proposed SEPP—the Planning Secretary, or (b) in the case of a proposed LEP—the relevant planning authority. (2) Before an environmental planning instrument is made, the relevant authority must consult with the Chief Executive of the Office of Environment and Heritage if, in the opinion of the relevant authority, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be adversely affected by the proposed instrument. (3) For the purposes of the consultation, the relevant authority is to provide such information about the proposed instrument as would assist in understanding its effect (including information of the kind prescribed by the regulations). (4) The consultation in relation to a proposed local environmental plan is to commence after a decision under section 3.34 (Gateway determination) that the matter should proceed, unless the regulations otherwise provide. (5) The Chief Executive of the Office of Environment and Heritage may comment to the relevant authority on the proposed instrument within the following period after the consultation commences— (a) the period agreed between the Chief Executive and the relevant authority, (b) in the absence of any such agreement, the period of 21 days or such other period as is prescribed by the regulations. (6) The consultation required by this section is completed when the relevant authority has considered any comments so made. (7) In this section, a reference to the Chief Executive of the Office of Environment and Heritage includes, in the application of this section to fish and marine vegetation, a reference to the Secretary of the Department of Industry, Skills and Regional Development. s 3.25 (previously s 34A): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]. 3.26 Special provision for development in Sydney water catchment relating to water quality (cf previous s 34B) (1) In this section, Sydney drinking water catchment means a declared catchment area (within the meaning of the Water NSW Act 2014 ) that is declared by a State environmental planning policy to be the Sydney drinking water catchment. (2) Provision is to be made in a State Environmental Planning Policy requiring a consent authority to refuse to grant consent to a development application relating to any part of the Sydney drinking water catchment unless the consent authority is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on the quality of water. (2A) A State environmental planning policy that requires proposed development to have a neutral or beneficial effect on the quality of water may deal with the application of that test in the case of proposed development that extends or expands existing development. (3) (4) The Minister is not to recommend the making of a State Environmental Planning Policy that relates to the declaration of the Sydney drinking water catchment unless— (a) the Minister administering the Water NSW Act 2014 approves of the declaration, and (b) the Minister administering the Protection of the Environment Operations Act 1997 has been consulted about the declaration. ss 3.26–3.28 (previously ss 34B–36): Renumbered 2017 No 60, Sch 3.2 [4]. 3.27 Validity of instruments (cf previous s 35) The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication on the NSW legislation website. ss 3.26–3.28 (previously ss 34B–36): Renumbered 2017 No 60, Sch 3.2 [4]. 3.28 Inconsistency between instruments (cf previous s 36) (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided— (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and (b) (c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind. (2), (3) (4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved. ss 3.26–3.28 (previously ss 34B–36): Renumbered 2017 No 60, Sch 3.2 [4]. Division 3.3 Environmental planning instruments—SEPPs div 3.3, hdg: Ins 2017 No 60, Sch 3.2 [7]. 3.29 Governor may make environmental planning instruments (SEPPs) (cf previous s 37) (1) The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP). (2) Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district within the meaning of Division 3.1. s 3.29 (previously s 37): Renumbered 2017 No 60, Sch 3.2 [4]. 3.30 Consultation requirements (cf previous s 38) (1) Before recommending the making of an environmental planning instrument by the Governor, the Minister is to take such steps, if any, as the Minister considers appropriate or necessary— (a) to publicise an explanation of the intended effect of the proposed instrument, and (b) to seek and consider submissions from the public on the matter. (2) Note. See also section 3.25. s 3.30 (previously s 38): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 66, Sch 1 [6]; 2023 No 52, Sch 1[15]. Division 3.4 Environmental planning instruments—LEPs div 3.4, hdg: Ins 2017 No 60, Sch 3.2 [10]. 3.31 Making of environmental planning instruments for local areas (LEPs) (cf previous ss 53, 53A) (1) A local plan-making authority may make environmental planning instruments for the purpose of environmental planning— (a) in each local government area, and (b) in such other areas of the State (including the coastal waters of the State) as the local plan-making authority determines. (2) Any such instrument may be called a local environmental plan (or LEP). (3) For the purposes of this Division, the following are local plan-making authorities — (a) the Minister, (b) a council for its local government area if the gateway determination under this Division authorises the council to make the local environmental plan concerned. s 3.31: Ins 2017 No 60, Sch 3.1 [3]. Am 2018 No 66, Sch 1 [7]. 3.32 Planning proposal authority (cf previous s 54) (1) For the purposes of this Division, the planning proposal authority in respect of a proposed instrument is as follows— (a) the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b), (b) if so directed under subsection (2)—the Planning Secretary, a Sydney district or regional planning panel or any other person or body prescribed by the regulations. (2) The Minister may direct that the Planning Secretary (or any such panel, person or body) is the planning proposal authority for a proposed instrument in any of the following cases— (a) the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district under Division 3.1, (b) the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the making of another environmental planning instrument or is consequential on changes made to a standard instrument under section 3.20, (c) the Planning Secretary, the Independent Planning Commission or a Sydney district or regional planning panel has recommended that the proposed instrument should be submitted for a determination under section 3.34 (Gateway determination) or that the proposed instrument should be made, (d) the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner, (e) the proposed instrument is to apply to an area that is not within a local government area. (3) A planning proposal authority that is requested by the owner of any land to exercise its functions under this Division in relation to the land may, as a condition of doing so, require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations. (4) The Minister may, in a direction under this section, require a council to provide studies or other information in its possession relating to the proposed instrument to the person or body specified in the direction as the planning proposal authority for the proposed instrument. (5) Two or more relevant local authorities may together exercise the functions under this Division of a planning proposal authority in connection with the making of a single principal or amending instrument in relation to the whole of their combined areas. (6) A reference in this section to a local government area includes a reference to an adjoining area that is not within a local government area and that is designated as part of that local government area for the purposes of this Division by a Ministerial planning order. s 3.32: Ins 2017 No 60, Sch 3.1 [4]. Am 2018 No 25, Sch 4 [12]; 2018 No 66, Sch 1 [5] [8] [9]. 3.33 Planning proposal authority to prepare explanation of and justification for proposed instrument—the planning proposal (cf previous s 55) (1) Before an environmental planning instrument is made under this Division, the planning proposal authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal ). (2) The planning proposal is to include the following— (a) a statement of the objectives or intended outcomes of the proposed instrument, (b) an explanation of the provisions that are to be included in the proposed instrument, (c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will give effect to the local strategic planning statement of the council of the area and will comply with relevant directions under section 9.1), (d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument, (e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument. (3) The Planning Secretary may issue requirements with respect to the preparation of a planning proposal. s 3.33 (previously s 55): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]. 3.34 Gateway determination (cf previous s 56) (1) After preparing a planning proposal, the planning proposal authority may forward it to the Minister. (2) After a review of the planning proposal, the Minister is to determine the following— (a) whether the matter should proceed (with or without variation), (b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal), (c) the minimum period of public exhibition of the planning proposal (or a determination that no such public exhibition is required because of the minor nature of the proposal), Note. Under Schedule 1, the mandatory period of public exhibition is 28 days if a determination is not made under paragraph (c). (d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument, (e) whether a public hearing is to be held into the matter by the Independent Planning Commission or other specified person or body, (f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed, (g) if the planning proposal authority is a council—whether the council is authorised to make the proposed instrument and any conditions the council is required to comply with before the instrument is made. (3) A determination of the community consultation requirements includes a determination under section 3.22 (or other provision of this Act) that the matter does not require community consultation. (3A), (3B) (4) The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category. (5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Independent Planning Commission or a Sydney district or regional planning panel— (a) if there has been any delay in the matter being finalised, or (b) if for any other reason the Minister considers it appropriate to do so. (6) The planning proposal authority may, at any time, forward a revised planning proposal to the Minister. (7) The Minister may, at any time, alter a determination made under this section. (8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under Schedule 1, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that Schedule. s 3.34 (previously s 56): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [13]; 2018 No 66, Sch 1 [5] [10] [11]; 2023 No 52, Sch 1[16]. 3.35 Planning proposal authority may vary proposals or not proceed (cf previous s 58) (1) The planning proposal authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason. (2) If it does so, the planning proposal authority is to forward a revised planning proposal to the Minister. (3) Further community consultation under Schedule 1 is not required unless the Minister so directs in a revised determination under section 3.34. (4) The planning proposal authority may also, at any time, request the Minister to determine that the matter not proceed. s 3.35 (previously s 58): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [14]; 2018 No 66, Sch 1 [5] [10]. 3.36 Making of local environmental plan by local plan-making authority (cf previous s 59) (1) The Planning Secretary is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the planning proposal authority. The Planning Secretary is to consult the planning proposal authority, in accordance with the regulations, on the terms of any such draft instrument. (2) The local plan-making authority may, following completion of community consultation— (a) make a local environmental plan (with or without variation of the proposals submitted by the planning proposal authority) in the terms the local plan-making authority considers appropriate, or (b) decide not to make the proposed local environmental plan. (3) The local plan-making authority may defer the inclusion of a matter in a proposed local environmental plan. (4) If the local plan-making authority does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the local plan-making authority may specify which procedures under this Division the planning proposal authority must comply with before the matter is reconsidered by the local plan-making authority. ss 3.36, 3.37 (previously ss 59, 60): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]. 3.37 Regulations (cf previous s 60) The regulations may make further provision with respect to the making of environmental planning instruments under this Division, including— (a) requirements with respect to consultation about proposed instruments by a planning proposal authority with particular persons or bodies, and (b) requirements with respect to planning proposals and the submission of other related reports and documents, and (c) requirements with respect to advertising in connection with community consultation on proposed instruments, and (d) provisions relating to consultation by the Planning Secretary with relevant planning authorities and others on the drafting of proposed instruments, and (e) requirements for concurrence of public authorities in relation to the reservation of land for a purpose referred to in section 3.14(1)(c). Note. The Interpretation Act 1987 applies to environmental planning instruments. ss 3.36, 3.37 (previously ss 59, 60): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]. Division 3.5 Planning instrument amendments and development applications div 3.5, hdg: Ins 2017 No 60, Sch 3.2 [11]. 3.38 Application of Division (cf previous s 72I) (1) This Division applies if a development application is made to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to the land on which the development is proposed to be carried out is appropriately amended. (2) (3) A reference in this Division to the appropriate amendment of an environmental planning instrument includes a reference to the making of an appropriate principal environmental planning instrument. ss 3.38–3.40 (previously ss 72I–72K): Renumbered 2017 No 60, Sch 3.2 [4]. 3.39 Making and consideration of certain development applications (cf previous s 72J) Nothing in this Act prevents— (a) the making of a development application to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to the land on which the development is proposed to be carried out is appropriately amended, or (b) the consideration by a consent authority of such a development application, subject to this Division. ss 3.38–3.40 (previously ss 72I–72K): Renumbered 2017 No 60, Sch 3.2 [4]. 3.40 Joint exhibition of instrument and advertising of application (cf previous s 72K) (1) Public notice that is required to be given under this Act in connection with the making of a proposed environmental planning instrument and notice that is required to be given under this Act of a development application in circumstances where this Division applies are to be given by the same notice if that is practicable or, if that is not practicable, as closely together as is practicable. (2) The period during which the public may inspect the documents relating to the proposed environmental planning instrument and the development application the subject of the same notice, if those periods are different, is to be the longer of them. (3) If the proposed environmental planning instrument makes the development the subject of the development application State significant development or designated development, the period for public inspection of the development application that is to be relevant in determining the period for public inspection under subsection (2) is the period relevant to the inspection of a development application for State significant development or designated development. ss 3.38–3.40 (previously ss 72I–72K): Renumbered 2017 No 60, Sch 3.2 [4]. Division 3.6 Development control plans (DCPs) div 3.6, hdg: Ins 2017 No 60, Sch 3.2 [14]. 3.41 Definition (DCPs) (cf previous s 74B) (1) In this Division— relevant planning authority , in relation to any matter, means the council of the area to which the matter relates or the Planning Secretary. However, the council is not the relevant planning authority in relation to a SEPP and the Planning Secretary is not the relevant planning authority in relation to a LEP for which a council is the planning proposal authority under Division 3.4. (2) A reference in this Division to an environmental planning instrument includes a reference to any such proposed instrument. s 3.41 (previously s 74B): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 25, Sch 4 [5]. 3.42 Purpose and status of development control plans (cf previous s 74BA) (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development— (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements. (2) The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43(1)(b)–(e). (3) Subsection (1) does not affect any requirement under Division 4.5 in relation to complying development. ss 3.42, 3.43 (previously ss 74BA, 74C): Renumbered 2017 No 60, Sch 3.2 [4]. 3.43 Preparation of development control plans (cf previous s 74C) (1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable— (a) to provide the guidance referred to in section 3.42(1), or (b) (c) to provide for (or exclude) public or particular advertising or notification of any of the following— (i) a development application for specified development (other than State significant development or designated development), (ii) a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application, (iii) an application for the modification of a development consent for specified development (but not State significant development or designated development), or (iv) (d) in the case of a council—to specify criteria (in addition to but not inconsistent with any criteria prescribed by the regulations) that the council is to take into consideration in determining whether or not to give a development control order, or (e) to make provision for anything permitted by this Act to be prescribed by a development control plan. Note. See for example section 3.14(4)(a). (2) Only one development control plan made by the same relevant planning authority may apply in respect of the same land. This subsection does not apply to— (a) a plan prepared for the purposes of subsection (1)(d) or for any other purpose prescribed by the regulations, or (b) a plan prepared for the purpose of amending an existing plan. If this subsection is not complied with, all the development control plans concerned have no effect. Note. A planning authority may prepare one development control plan for the whole of its area or one plan for each precinct or locality in its area, or prepare one plan for a site (and exclude that site from the area to which other plans apply). (3) A development control plan may adopt by reference the provisions of another development control plan. (4) A development control plan may amend, substitute or revoke another development control plan. (5) A provision of a development control plan (whenever made) has no effect to the extent that— (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument. ss 3.42, 3.43 (previously ss 74BA, 74C): Renumbered 2017 No 60, Sch 3.2 [4]. 3.44 Development control plans required or authorised by environmental planning instruments (cf previous s 74D) (1) An environmental planning instrument may require or permit a development control plan to be prepared before any particular development or kind of development may be carried out (and make provision with respect to the preparation and content of any such plan). (2) Any such development control plan may outline the development of all the land to which it applies. (3) Any such development control plan may be prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies or by such percentage of those owners as the environmental planning instrument concerned allows. A person authorised by those owners may act on their behalf for the purposes of this subsection. (4) The relevant planning authority may make a development control plan submitted to it under this section, including with such changes as it thinks fit. (5) If the relevant planning authority refuses to make a development control plan submitted to it under this section (or delays by more than 60 days to make a decision on whether to make the plan)— (a) the owners may make a development application despite the requirement of the environmental planning instrument concerned for the preparation of a development control plan, or (b) the Minister may act in the place of the relevant planning authority to make the plan (with or without modification), but only if the environmental planning instrument concerned authorises the Minister to do so. (6) The regulations may extend the period of 60 days referred to in subsection (5) in connection with any failure by the owners to provide further information required by the relevant planning authority for the purposes of making the plan. Note. Section 4.23 provides that a concept development application may be made for development requiring consent under Part 4 as an alternative to a development control plan required by an environmental planning instrument. s 3.44 (previously s 74D): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 66, Sch 1 [12]. 3.45 Miscellaneous provisions relating to development control plans (cf previous s 74E) (1) The regulations may make provision for or with respect to development control plans, including— (a) the form, structure and subject-matter of development control plans, and (b) the procedures for the preparation, public exhibition, making, amendment and repeal of development control plans, and (c) the fees payable to the relevant planning authority by owners submitting draft development control plans under section 3.44. (2) (2A) Regulations relating to the form, structure and subject-matter of development control plans may require the standardisation of those plans and, for that purpose, authorise the Minister to publish requirements as to their form, structure and subject-matter that are to be complied with by relevant planning authorities. (3) An environmental planning instrument may exclude or modify the application of development control plans in respect of land to which the instrument applies (whether the plan was prepared before or after the making of the instrument). (4) A development control plan must be available for public inspection (without charge)— (a) at the principal office of the relevant planning authority that prepared the plan, and (b) in such other manner as is prescribed by the regulations. s 3.45 (previously s 74E): Renumbered 2017 No 60, Sch 3.2 [4]. 3.46 Minister may direct councils with respect to development control plans (cf previous s 74F) (1) The Minister may, subject to the regulations (if any), direct a council to make, amend or revoke a development control plan in the time and manner specified in the direction. (2) A council to which a direction is given under this section must comply with the direction in accordance with its terms. (3) If a council fails to comply with a direction of the Minister under this section, the Minister may make, amend or revoke the development control plan as if the Minister were the council. (4) A development control plan made, amended or revoked by the Minister under this section has effect, or ceases to have effect as the case may be, as if it were made, amended or revoked by the council. (5) The Minister in making, amending or revoking a development control plan under this section is not subject to the regulations. (6) Section 3.43(2) does not apply to development control plan made by or at the direction of the Minister under this section. s 3.46 (previously s 74F): Renumbered 2017 No 60, Sch 3.2 [4]. Am 2018 No 66, Sch 1 [9] [13].