Minimise concurrence, referral and designated development provisions in LEPs.
Planning proposals must minimise provisions requiring concurrence, consultation or referral to a Minister or public authority, and must not include such provisions without prior approval from the relevant authority and the Planning Secretary. Development can only be identified as designated development where the Secretary is satisfied it is likely to have a significant environmental impact and has approved it.
This direction is aimed at keeping the development assessment process efficient by controlling how often a Local Environmental Plan (LEP) can require an application to be signed off, checked or referred to a Minister or public authority before it can be approved. When a planning authority (usually a council) prepares a planning proposal to amend or make an LEP, this direction tells them to keep such concurrence, consultation and referral requirements to a minimum, because each one adds time, cost and complexity to assessing a development application.
In practice it means a council cannot simply insert into its LEP a clause saying 'this type of DA must be referred to Agency X' or 'the Minister must concur' without first getting the relevant Minister or public authority to agree, and also getting the Planning Secretary's approval. Those approvals must be obtained before the planning proposal goes out for community consultation. The same discipline applies to labelling a class of development as 'designated development' (a category triggering extra environmental assessment and third-party appeal rights): the council must convince the Planning Secretary that the development is likely to have a significant environmental impact and get the Secretary's approval first.
The consequence of not following this is that the planning proposal will not be substantially consistent with the direction, which can hold up or prevent the LEP amendment from proceeding. The direction commenced on 1 March 2022 and replaces the former Direction 6.1.
All relevant planning authorities (typically councils, but also the Department or others) when preparing a planning proposal to make or amend an LEP.
It is triggered whenever a relevant planning authority prepares a planning proposal — particularly one that would include provisions requiring concurrence, consultation or referral of DAs to a Minister or public authority, or that would identify a class of development as designated development.
The source does not state express exemptions. The only relief is that concurrence/consultation/referral provisions and designated development identifications are permitted where the required prior approvals (from the Minister/public authority and/or the Planning Secretary) are obtained before community consultation. Consistency is judged as 'substantially consistent'.
Refers to Schedule 1 of the Environmental Planning and Assessment Act 1979 (EP&A Act) for the community consultation stage, and adopts the definition of 'public authority' from section 1.4 of the EP&A Act. It replaces the previous Direction 6.1.
The planning proposal must minimise the inclusion of provisions that require the concurrence, consultation or referral of development applications to a Minister or public authority.
It must not contain such provisions unless the authority has first obtained approval from both the appropriate Minister or public authority and the Planning Secretary (or nominated officer), prior to community consultation under Schedule 1 to the EP&A Act.
It must not identify development as designated development unless the authority can satisfy the Planning Secretary that the class of development is likely to have a significant impact on the environment, and has obtained the Secretary's approval before community consultation.
A planning proposal must be substantially consistent with the terms of this direction.
For a small coastal council like Kiama, this bites when the council prepares a planning proposal to amend its LEP. If Kiama wanted, for example, to require referral of certain coastal, heritage or environmentally sensitive DAs to a state agency, or wanted to flag a class of development as designated development, it could not simply write that into the LEP — it would first need agreement from the relevant Minister/agency and the Planning Secretary before exhibiting the proposal. In everyday DA assessment the direction has no direct effect; it only constrains what Kiama can build into its planning instruments.
1.3 Approval and Referral Requirements Objective The objective of this direction is to ensure that LEP provisions encourage the efficient and appropriate assessment of development. Application This direction applies to all relevant planning authorities when preparing a planning proposal. Direction 1.3 (1) A planning proposal to which this direction applies must: (a) minimise the inclusion of provisions that require the concurrence, consultation or referral of development applications to a Minister or public authority, and (b) not contain provisions requiring concurrence, consultation or referral of a Minister or public authority unless the relevant planning authority has obtained the approval of: i. the appropriate Minister or public authority, and ii. the Planning Secretary (or an officer of the Department nominated by the Secretary), prior to undertaking community consultation in satisfaction of Schedule 1 to the EP&A Act, and (c) not identify development as designated development unless the relevant planning authority: i. can satisfy the Planning Secretary (or an officer of the Department nominated by the Secretary) that the class of development is likely to have a significant impact on the environment, and ii. has obtained the approval of the Planning Secretary (or an officer of the Department nominated by the Secretary) prior to undertaking community consultation in satisfaction of S chedule 1 to the EP&A Act. Consistency A planning proposal must be substantially consistent with the terms of this direction. Note: In this direction “public authority” has the same meaning as section 1.4 of the EP&A Act. Issued to commence 1 March 2022 (replaces previous Direction 6.1)
Reproduced from the NSW Department of Planning, Housing and Infrastructure (planning.nsw.gov.au), © State of New South Wales, under Creative Commons Attribution 4.0. Text extraction may introduce minor formatting artefacts — rely on the official source for anything decision-critical.
This is an unofficial reproduction provided for convenience. It is not the official version of the legislation. For the official, in-force version, see legislation.nsw.gov.au.