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Do Crown authorities need development approval?

May 21, 2019 Posted by Heath McNab
Do Crown authorities need development approval?

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Development approvals by Crown authorities are a source of confusion for many of our clients. We asked Nathaniel Murray, Director of NSW Town Planning, to explain the process and provide tips for your next Crown development.

It’s one of the most misunderstood development types in NSW. And while the legislation governing development on Crown land was recently revised with the aim of providing a simpler and more streamlined process, these changes related mostly to the management of Crown land, leaving the approval process for development by a Crown authority (either on Crown land or otherwise) relatively complex.

The main problem I come across at NSW Town Planning is confusion around the difference between exempt development and development without consent. While they sound similar, they are very different in terms of how they’re dealt with under the legislation.

Exempt development

This typically covers low-risk works, such as those undertaken by families around their home. To be eligible for an exempt development, the project must have minimal impact (such as a paved area in a backyard, ramps or a letterbox installation). Non-residential works, including works by or on behalf of a government authority, may also be exempt if they meet specified thresholds.

No formal approval or certificate is required for exempt development. While technically, no exempt development additional provisions also enable the use of Crown buildings for Crown purposes without further approval in some instances.

Development without consent

Development without consent generally covers works by or on behalf of a public authority, such as government infrastructure or a building used for public administration purposes (such as a police station or court).

Many government clients believe relying on development without consent means they don’t need to go through an approval process, but this is not the case. Government bodies have a statutory duty to consider the impact of activities on the environment (which extends beyond ecological issues to include matters such as social, cultural, and economic aspects) under the Environmental Planning and Assessment Act 1979 (the Act), even for minor activities.

While a Development Application (DA) from Council is not required for development without consent, there is a process you will need to follow to obtain a permit before you start construction, if the proposal is deemed an activity. Part 5 of the Act establishes a safety net for such works and may identify that a permit or approval is required despite no development consent being required. At the very least, it requires consideration of potential impacts and a response to those impacts.

Step 1: Review of Environmental Factors (REF)

The most common report used to consider environmental impacts by an activity carried out by or on behalf of Crown authority is the REF. This should be your first step, and is commissioned for, or prepared by, the Crown body itself.

The objective of the REF is to consider the environment impact of the activity, such as water quality or heritage concerns. The REF must be considered by the authority that administers the portfolio that is proposing the activity. Government bodies can be both the applicant and the determining authority in this this instance.

The onus is on the authority to ensure appropriate considerations and any steps are undertaken. The REF may also require referral to authorities under other Ministerial portfolios, to ensure the full range of potential impacts are considered. It’s a very unique situation. And while it can be tempting to take a shortcut and skip this process, it’s important to have a record of your due diligence if nothing else.

Step 2: Investigate or proceed

If the REF determines that the activity has potential for an environmental impact, there must be further investigation. This involves developing an environmental impact statement, which details the impacts and how these are intended to be mitigated. This becomes a public engagement tool and used to seek feedback from the community.

If the REF shows there will be no, minimal or even a reasonable environmental impact that can be managed, the Crown authority may make the decision to move forward with the activity. If the project is to proceed, a Crown certificate is required to ensure compliance with relevant building standards.

An easier way forward

There is an alternative way to gain approval for Crown developments, if the development without consent pathway seems too lengthy and/or complex. A Crown body simply needs to apply for a Crown Development Application (Crown DA) through the traditional process, most commonly the local Council.

As a Crown DA, the consent authority does not have the ability to refuse such an application without the approval of the Minister. The consent authority is also bound to a statutory timeframe for determining a Crown development application. Should a determination not be granted after 70 days from lodgement, the Crown body may refer the application to the Minister or relevant regional panel for determination.

Even if the consent authority applies conditions to the Crown DA, these conditions need to be approved by the Crown body or the Minister. While some may see this as a conflict of interest, seeing as the Crown body must approve its own DA, it’s often a simpler process and one that many Crown clients prefer as it remains more transparent than development without consent.

Depending on the nature of the proposal. we recommend the Crown DA for most, if not all, of our Crown clients. An exception to this would be if the works were so small that undertaking an REF would still be simpler than waiting for Council to process the DA in the statutory period.

No matter how you proceed, it’s important to remember that you can’t undertake work on Crown land without considering your obligations under the Crown Land Management Act 2016 which commenced on 1 July 2018, which may restrict certain land to certain activities, and the Environmental Planning and Assessment Act 1979 more generally if Crown activities are proposed on non-Crown land.

After all, you wouldn’t bulldoze a national park to build a road without considering the impact on the environment. Why should alterations and additions of a government building located in the CBD be any different? The two Acts aren’t perfect, but they are a safety net that ensures activities by the NSW State Government do not adversely impact the environment.

For more information on your obligations when it comes to developing on Crown land, contact Nathaniel Murray at NSW Town Planning.

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