Consult Subsidence Advisory NSW; don't permit development on unstable land.
When a planning proposal would permit development on land within a declared mine subsidence district, the authority must consult Subsidence Advisory NSW about any objections and the appropriate scale, density and type of development, then build consistent provisions into the draft LEP. Information received must be given to the Planning Secretary before community consultation. Proposals must not permit development on land identified as unstable.
This direction is one of the NSW ministerial planning directions (under section 9.1 of the Environmental Planning and Assessment Act) that constrains what councils and other planning authorities can do when they rewrite the local planning rules (a planning proposal that amends a Local Environmental Plan). Its aim is to stop new development being enabled on ground that could collapse or sink — either because it sits over old or current coal mines (a declared mine subsidence district) or because a study has flagged it as unstable. The mechanism is twofold: for mine subsidence land, the planning authority must talk to the specialist agency (Subsidence Advisory NSW) before locking in zoning and density; for land identified as unstable, the proposal simply must not allow development there.
Relevant planning authorities (usually councils, but also other bodies) that prepare a planning proposal to amend a Local Environmental Plan. The later note also touches consent authorities (councils) and applicants dealing with development applications, but the direction itself binds the authority preparing the planning proposal.
It is triggered when a planning proposal would permit development on land that is either within a declared mine subsidence district under the Coal Mine Subsidence Compensation Regulation 2017 / Act 2017, or that has been identified as unstable in a study, strategy or assessment done by or for the planning authority or a public authority and given to the planning authority.
A planning proposal may be inconsistent only if the authority satisfies the Planning Secretary (or nominated officer) that the inconsistent provisions are: justified by a Secretary-approved strategy that considers the objective and identifies the land; or justified by a supporting study that considers the objective; or in accordance with a relevant Regional Strategy, Regional Plan or District Plan that considers the objective; or of minor significance.
Operates alongside the Coal Mine Subsidence Compensation Act 2017 (section 20 declares districts; section 22 requires Subsidence Advisory NSW approval to build, alter or subdivide in a district). Under sections 4.46 and 4.47 of the EP&A Act, that section 22 approval is integrated development, so at DA stage the consent authority must obtain and be consistent with the general terms of approval from Subsidence Advisory NSW. It replaced the previous Direction 4.2 from 1 March 2022.
For land in a declared mine subsidence district, the authority must ask Subsidence Advisory NSW whether it objects to the draft LEP (and why), and what scale, density and type of development suits the potential level of subsidence.
The draft Local Environmental Plan must include provisions consistent with the scale, density and type of development recommended by Subsidence Advisory NSW.
A copy of any information received from Subsidence Advisory NSW must accompany the statement to the Planning Secretary (or nominated officer) before community consultation under Schedule 1 to the Act.
A planning proposal must not permit development on land that has been identified as unstable as described in the application section.
Kiama is not a coal-mining area and is unlikely to sit within a declared mine subsidence district, so limb (1) about consulting Subsidence Advisory NSW will rarely bite. However, the second limb — that a planning proposal must not permit development on land identified as unstable in a study or assessment — is directly relevant to Kiama's coastal escarpment and cliff/landslip-prone slopes. If a geotechnical or hazard study flags land as unstable, a Kiama planning proposal cannot rezone or enable development there unless one of the consistency exceptions is met.
4.6 Mine Subsidence and Unstable Land Objective The objective of this direction is to prevent damage to life, property and the environment on land identified as unstable or potentially subject to mine subsidence. Application This direction applies when a relevant planning authority prepares a planning proposal that permits development on land that is within a declared mine subsidence district in the Coal Mine Subsidence Compensation Regulation 2017 pursuant to section 20 of the Coal Mine Subsidence Compensation Act 2017, or has been identified as unstable in a study, strategy or other assessment undertaken by or on behalf of the relevant planning authority or by or on behalf of a public authority and provided to the relevant planning authority. Direction 4.6 (1) When preparing a planning proposal that would permit development on land that is within a declared mine subsidence district, a relevant planning authority must: (a) consult Subsidence Advisory NSW to ascertain: i. if Subsidence Advisory NSW has any objection to the draft local environmental plan, and the reason for such an objection, and ii. the scale, density and type of development that is appropriate for the potential level of subsidence, and (b) incorporate provisions into the draft Local Environmental Plan that are consistent with the recommended scale, density and type of development recommended under 1(a)(ii), and (c) include a copy of any information received from Subsidence Advisory NSW with the statement to 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 Act. (2) A planning proposal must not permit development on land that has been identified as unstable as referred to in the application section of this direction. 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 objective 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 objective 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 o f this direction, or (d) of minor significance. Note: With regard to development applications, section 22 of the Coal Mine Subsidence Compensation Act 2017 requires approval from the Chief Executive of Subsidence Advisory NSW to alter or erect improvements within a mine subsidence district or to subdivide land therein. Section 4.46 of the EP&A Act provides that approval under section 22 of the Coal Mine Subsidence Compensation Act 2017 is integrated development. Section 4.47 of the EP&A Act provides that the consent authority must obtain from the relevant approval body (Subsidence Advisory NSW) the general terms of any approval proposed to be granted by the approval body in relation to the development. A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body. Issued to commence 1 March 2022 (replaces previous Direction 4.2)
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.
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.