Development Assessment Processes
Most types of building, subdivision and demolition work requires a development application (DA) to be submitted to Council for approval.The following information provides a brief outline of the development process.
Most types of building, subdivision and demolition work requires a development application (DA). All development applications and ancillary applications must be submitted to Council via the NSW Planning Portal for approval. The following information provides a brief outline of the development process.
When is a Development Application Required?
Before you make any changes to a building or occupy premises, you need to check with Council whether the proposal is “development” and requires the consent of Council. Some minor works called “exempt development” may not require approval provided it meets certain criteria included in the Kyogle Council’s Exempt Development Control Plan 1998. All other development requires the submission of a development application with the consent authority.
What is required with a development application? Firstly you should visit or contact Council’s Planning & Environment Department and check with the staff:
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Whether a development application is required;
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Whether the proposal is permissible;
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How Council’s codes and policies may affect the proposal;
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Obtain copies of the information necessary to submit a development application. This includes the development application form.
Lodging a Development Application Through the NSW Planning Portal
Council’s downloadable forms and development application checklists are available here
The checklist is intended to ensure that Council has sufficient information to determine the likely impacts of a proposal, including compliance with codes and policies.
How is a Development Application Assessed?
Initial enquiry
You should discuss the proposal with an officer from Council’s Planning and Environment Department before lodging a DA. During this initial enquiry, you need to determine the processing requirements of your proposal and what information should be included in the DA.
DA Lodgement
It is a requirement of the EP&A Act and the Regulation that the DA is correctly lodged. Applicants must submit their completed development application through the NSW Planning Portal to begin the assessment process.
You are required under section 147(4) or (5) of the Environmental Planning and Assessment Act 1979 to disclose any political donations or gifts. A disclosure statement of a reportable political donation or gift must accompany a planning application or submission if the reportable donation or gift is made within 2 years before the application or submission is made. If the donation or gift is made after the lodgement of the application, a disclosure statement must be sent to the relevant consent or approval authority within 7 days after the donation or gift is made.
The preliminary assessment will begin once the DA is lodged through the NSW Planning Portal to Council. Council officers will check its consistency with the requirements of any local, regional or state planning instrument, or other planning regulation that relates to the site or the proposed development. It is at this stage that the applicant may be asked to provide additional information to assist with the assessment of the proposal.
Consultation
If required under Council’s Community Participation Plan, the DA may be publicly exhibited and/or nearby landowners notified. Consultation may also be carried with other government authorities or service agencies that have an interest in the DA.
Assessment
The application will be assessed, taking into account:
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the requirements of any local, regional or state planning instrument, or other planning regulation that relates to the site or the proposed development. These may contain issues to be considered or standards that must be met
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the impact the proposed development is likely to have on the natural environment, the built environment and the local community
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whether the site is suitable for the proposed development
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any submissions made by neighbours, the wider community and government agencies after the development application was advertised
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the public interest
The Decision
The DA will either be approved or refused by the consent authority. If the application is approved, the consent will usually set out conditions that the applicant must fulfil. The applicant can challenge Council’s decision if he/she is dissatisfied with it. The approval will be provided to the applicant via the NSW Planning Portal.
Approval to begin work
If the development involves construction work (for example a building, road or stormwater drainage system for a subdivision), the Applicant must apply via the NSW Planning Portal for a construction certificate. The construction certificate certifies that the work the Applicant intends to do will comply with required standards. The Applicant needs to provide detailed designs and documentation with their application for a construction certificate through the NSW Planning Portal. This detail must be consistent with the plans lodged with the DA and it must be clear that any building work will comply with the Building Code of Australia.
Principal Certifying Authority Appointed
Before any work can start, the Applicant must choose a principal certifying authority (PCA). This can be Council or an accredited certifier. The PCA will make sure that the work is done in accordance with the development consent and approved construction plans. At least two days before starting work, the Applicant must notify Council that work is going to start, and who is the PCA, if it is not the Council.
Approval to Occupy
Before moving into a new building or registering a subdivision with Land and Property Information NSW, the Applicant must obtain from the PCA through the NSW Planning Portal:
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an occupation certificate if he/she is going to occupy or use a new building or change the use of an existing building and/or
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a subdivision certificate to have the plan of subdivision registered.
Compliance Check
Council will monitor the finished development to make sure that local planning policies, and decisions made under those plans, are achieving their desired outcomes. If the development does not comply with the development consent, the Applicant can be:
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fined (called a penalty notice)
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ordered to make changes to the development
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taken to the Land and Environment Court. The court may order the Applicant to carry out necessary works (such as altering the development or making repairs), or may forbid the Applicant to use the premises in certain ways.
Right of Review
An applicant can request Council to review its determination of a development application within 28 days after the date of determination. Any request for a review is required to be accompanied by a set fee.
Appealing Rights
An applicant who is dissatisfied with a decision can:
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if the decision was made by a council, ask the council to review its decision
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appeal against the decision in the Land and Environment Court within 12 months of receiving notification of the decision.
The applicant cannot appeal to the Court against the determination, however, if their proposal is state significant development and a Commission of Inquiry was held. If no decision has been made within 40 days (or 60 days for some type of development such as designated development), an applicant can take action in the Land and Environment Court to get a decision.
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If you wrote to the consent authority objecting to a proposal that is designated development and the proposal is approved, you can appeal to the Land and Environment Court. You must lodge your appeal within 28 days of receiving notice of the determination.
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If the applicant appeals against the consent authority’s decision to give or refuse consent to a designated development proposal, as an objector you can also attend the hearing of the appeal at the court and make submissions. If a development application is the subject of a Commission of Inquiry, these appeal rights do not apply. A Commission of Inquiry however does not affect your rights under section 123 of the EP&A Act.
As a member of the public you have certain rights under the EP&A Act in regard to how a development application is assessed and determined. (For details see the EP&A Act)
