Land Use Tables in Local Environmental Plans prescribe the types of development that may be permissible (with consent) and those that are prohibited within the relevant zoning. The Land Use Table also describes the objectives of the relevant zoning.

Council often encounters the difficult task of determining whether proposed development is consistent with the objectives for the relevant zone. This article discusses how this assessment task may have changed in recent years and recent case law that may be of assistance.

There is a significant amount of case law dealing with whether development is ‘consistent’ with zone objectives. However, much of that case law, including Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 and Gillespies v Warringah Council (2002) 124 LGERA 147 considered clauses that contained different wording to the current wording in the Standard Instrument Principal Local Environmental Plan 2006 (Standard Instrument). Previous clauses (now repealed) required, for example, that a consent authority, “must not grant consent to the carrying out of development on land … unless the carrying out of the development is generally consistent with one or more of the objectives of the zone”.

In contrast, clause 2.3(2) of the Standard Instrument requires that the consent authority have regard to the objectives of the zoning.

Clause 2.3(2) states:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

But what does it mean to have regard to the objectives of the zoning?

Recent decisions in the NSW Land and Environment Court may be of assistance, for example Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 (Jeffrey) and Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758 (Muscat Developments). 

Both Jeffrey and Muscat Developments cite BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (BGP Properties). In BGP Properties, McLelland CJ said, in relation to zoning [at 119]:

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

In Jeffrey, Preston CJ of the NSW Land and Environment Court observed, with respect to BGP Properties and zone objectives [at 62-64]:

In this context, the objective of Zone R4 should be construed so as to promote the purpose of this threefold classification of development and the presumption that development for a purpose that is classified as being permitted with consent in the zone will be compatible with the objectives of the zone…

This leads to an expectation, in most cases, that development consent will be granted to an application to use a site for a purpose for which it is zoned. But this general expectation is subject to the circumstances of the particular development for which consent is sought. This is the second point made in BGP Properties. The design of the particular development for that purpose should result in acceptable environmental impacts: at [118]. If it does not, there can be no expectation that consent will be granted to the development, notwithstanding that it is for a purpose that is permitted and consistent with the zoning.

The recent decision of Clay AC in Muscat Developments is also instructive because the NSW Land and Environment Court in that case considered the construction of two depots (sheds) within RU2 Rural Landscape zoning in a Local Environmental Plan (LEP) containing the new wording that a consent authority have regard to the zone objectives.

Clay AC [at 210-212] made the following observations with respect to zoning and consistency with rural character of the surrounding landscape:

The observations [of Preston CJ in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59] are relevant because here there is an existing interruption to the bucolic rural landscape – the sheds and associated hard stand of the former chicken sheds. The question becomes primarily, what is the impact of the additional sheds in the landscape. If that impact is acceptable, and there are no unacceptable other impacts, then the application of the principles of BGP Properties and Jeffery would suggest that the proposed use is acceptable.

Following the decisions of Jeffrey, Muscat Developments and Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1, [2007] NSWLEC 59, there is a presumption that development that is permissible (with consent) will be consistent with the objectives of the relevant zoning. However, any expectation that development consent will be granted to a proposed development that is consistent with zone objectives must be tempered by the reality that the design of the proposed development must result in acceptable environmental impacts.

This latter question will by necessity involve matters of fact and degree and vary from case to case. Generally speaking, development should be of a design, scale and density that is sympathetic to its natural surrounds.

This is a complex area of law and if you are concerned about your proposed development, or Council has raised a question as to whether your development is consistent with the relevant zone objectives, you should engage a competent town planner and planning lawyer to advise you on the appropriate course to take.