By Aaron Gadiel, Partner

The NSW Government has published new rules for development on local council land.  This will affect development applications that seek approval for the carrying out of work within existing public roads, drainage reserves or public reserves.

The new rules are set out in the Environmental Planning and Assessment Amendment (Conflict of Interest) Regulation 2022.  This regulation was published on 30 September 2022, but will not take effect until 3 April 2023.

Council-related development applications

The rules apply to any ‘council-related development application’.

This refers to a development application, for which a local council is the consent authority, that is either:

• made by or on behalf of a local council; or
• for development on land of which the council is an owner, a lessee or a licensee or
• for development on other land of that is vested in or under the control of the council.

Importantly, development applications that must be determined by a district or regional planning panel are not captured by this new category (as such panels are consent authorities in their own right).

However, development applications that must be determined by local planning panels are included in this category (as such panels are merely exercising the consent authority functions of the local council).

Of greatest interest to private sector developers will be the fact that any development application that seeks to approve the carrying out of development on local council land will be captured by this new category (where the local council is the consent authority).

At present, many development applications are framed to seek approval for roadworks and/or stormwater works within a public road (and occasionally, drainage reserves or public reserves).

The local council is the owner of all public roads for which it is the roads authority (other than freeways and Crown roads) — as per section 145 of the Roads Act 1993.  Similarly, the local council is the owner of formally dedicated public reserves and drainage reserves (section 49 of the Local Government Act 1993).

This means that if you prepare a development application that seeks approval for roadworks or stormwater infrastructure to be constructed within a normal public road, public reserve or drainage reserve, it will be regarded as a ‘council-related development application’.

Public exhibition

The minimum public exhibition period for a council-related development application will be 28 days.

Mandatory statement

A council-related development application must be accompanied by either:

• a statement specifying how the local council will manage conflicts of interest that may arise in connection with the application because the council is the consent authority (a management strategy); or
• a statement that the council has no management strategy for the application.

Prohibition on determination of an application if there is no policy

It will not be legally possible for a council-related development application to be determined by the consent authority (including the Land and Environment Court on appeal) unless:

• the council has adopted a conflict of interest policy; and
• the council considers the policy in determining the application.

Presumably, the reason that these new rules do not apply until 3 April 2023 is to allow local councils sufficient time to prepare and adopt a conflict of interest policy.

If you are preparing a development application (that may not be determined before 3 April 2023) before you propose to authorise works in a public road, public reserve or drainage reserve, you may want to check whether the local council has adopted a conflict of interest policy for council-related development applications.

If the conflict of interest policy has not (or may not) be adopted in time, you may wish to consider:

• depicting roadworks and stormwater infrastructure on local council land in drawings (and reports) for assessment purposes only; and
• expressly stating that approval is not sought for the carrying out of the roadworks and stormwater works as part of the subject application.

However, if you do this, you must still present all necessary information to allow the impacts of these works to be assessed.  This is because, even when works are not sought to be authorised by a development application, if the works are essential for the development, the consent authority still has an obligation to fully assess the impacts of those works.  This means, for example, that the impacts of depicted stormwater infrastructure on off-site trees would need to be assessed in any arborist report.

Also, if you take this course of action, you may need to obtain a separate later development consent for the works on the local council land.  Although this would not normally be necessary for roadworks in the public road reserve (because of section 2.109 of the State Environmental Planning Policy (Transport and Infrastructure) 2021).

The bottom-line

The primary motivation for these new rules seems to relate to when local councils are developing their own land.

However, the rules have a much broader application.  They appear to erect additional bureaucratic hurdles for private sector developers whose applications seek to authorise works on local council land adjacent to their development sites.

This appears to be another case of good intentions falling victim to the tendency of NSW planning policy-makers to over-regulate.