Planning proposals must protect sensitive areas and not weaken conservation standards.
A planning proposal must include provisions that protect and conserve environmentally sensitive areas. Where land is in a conservation zone or otherwise identified for environmental conservation/protection in an LEP, the proposal must not reduce the conservation standards that apply, including by changing development standards. An exception applies to minimum lot size changes for a dwelling made under Direction 9.2(2) 'Rural Lands'.
Direction 3.1 is one of the NSW ministerial planning directions that local councils and other planning authorities must apply whenever they prepare a planning proposal (a proposal to make or change a Local Environmental Plan). Its purpose is to protect environmentally sensitive areas. It does two things: first, it requires every planning proposal to include provisions that help protect and conserve environmentally sensitive areas; second, and more specifically, where a proposal affects land that is already in a conservation zone or otherwise flagged in an LEP for environment conservation or protection, the proposal must not water down the conservation standards that currently apply to that land.
The phrase 'must not reduce the conservation standards' is broad — it expressly captures attempts to weaken protection indirectly by modifying development standards on the land, not just by rezoning it. So a proposal that, for example, loosened controls in a way that made the land easier to develop would run into this direction. There is one carve-out written into the rule itself: it does not stop a change to the minimum lot size development standard for a dwelling where that change is made in line with Direction 9.2(2) of the 'Rural Lands' direction.
As with all these directions, consistency is the norm and inconsistency must be justified to the Planning Secretary. If a council wants to depart from the direction, it has to satisfy the Secretary (or a nominated departmental officer) that the inconsistent provisions fall within one of the listed justification grounds, or that the inconsistency is only of minor significance.
All NSW relevant planning authorities (in practice, councils and any other authority) when they prepare a planning proposal to make or amend a Local Environmental Plan.
It is triggered whenever a relevant planning authority prepares a planning proposal. The stricter 'no reduction' test bites specifically when the proposal applies to land within a conservation zone or land otherwise identified for environment conservation/protection purposes in an LEP.
Inconsistency is permitted only if the planning authority satisfies the Planning Secretary (or a nominated departmental officer) that the inconsistent provisions are: (a) justified by a strategy approved by the Secretary that considers the direction's objectives and identifies the subject land; or (b) justified by a study prepared in support of the proposal that considers the objectives; or (c) in accordance with a relevant Regional Strategy, Regional Plan or District Plan that considers the objective; or (d) of minor significance. Separately, the rural dwelling minimum lot size change under Direction 9.2(2) is expressly excluded from the no-reduction rule.
Expressly interacts with Direction 9.2 'Rural Lands' (the minimum lot size carve-out). Also references Regional Strategies, Regional Plans and District Plans prepared by the Department of Planning and Environment as a basis for justifying inconsistency. It commenced 1 March 2022 and replaces the previous Direction 2.1.
Every planning proposal must include provisions that facilitate the protection and conservation of environmentally sensitive areas.
For land in a conservation zone or otherwise identified in an LEP for environment conservation/protection, the proposal must not reduce the conservation standards applying to the land, including by modifying development standards on that land.
The no-reduction requirement does not apply to a change to a minimum lot size development standard for a dwelling made in accordance with Direction 9.2(2) of 'Rural Lands'.
This directly bites in Kiama. The LGA carries environmental protection and conservation zoning — coastal escarpment, wetlands, riparian and other environmentally sensitive land — so any Kiama planning proposal touching such land must include protective provisions and cannot weaken existing conservation standards, whether by rezoning or by loosening development standards. Given ongoing housing pressure, a council proposal that tried to open up conservation-zoned or environment-protection land for more development would need to be justified to the Planning Secretary under one of the consistency grounds, unless it were genuinely minor. Kiama's rural areas may use the Direction 9.2(2) minimum lot size carve-out for dwellings.
3.1 Conservation Zones Objective The objective of this direction is to protect and conserve environmentally sensitive areas. Application This direction applies to all relevant planning authorities when preparing a planning proposal. Direction 3.1 (1) A planning proposal must include provisions that facilitate the protection and conservation of environmentally sensitive areas. (2) A planning proposal that applies to land within a conservation zone or land otherwise identified for environment conservation/protection purposes in a LEP must not reduce the conservation standards that apply to the land (including by modifying development standards that apply to the land). This requirement does not apply to a change to a development standard for minimum lot size for a dwelling in accordance with Direction 9.2 (2) of “Rural Lands”. Consistency A planning proposal may be inconsistent with the terms of this direction only if the relevant planning authority can satisfy the Planning Secretary (or an officer of the Department nominated by the Secretary that the provisions of the planning proposal that are inconsistent are: (a) justified by a strategy approved by the Planning Secretary which: i. gives consideration to the objectives of this direction, and ii. identifies the land which is the subject of the planning proposal (if the planning proposal relates to a particular site or sites), or (b) justified by a study prepared in support of the planning proposal which gives consideration to the objectives of this direction, or (c) in accordance with the relevant Regional Strategy, Regional Plan or District Plan prepared by the Department of Planning and Environment which gives consideration to the objective of this direction, or (d) is of minor significance. Issued to commence 1 March 2022 (replaces previous Direction 2.1)
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.