Skip to content.

Home

Allens

Client Update: Failure to comply with zoning invalidates Part 3A project

7 December 2009

In brief: The NSW Land and Environment Court has voided a project approval for a regional gun club and shooting complex under Part 3A of the Environmental Planning and Assessment Act 1979, as part of the project was impermissible under zoning laws in a local environmental plan. Partner Jim Parker (view CV) and Law Graduate Madeleine Ellicott review the decision.

How does it affect you?

Zoning controls in environmental planning instruments should be scrutinised carefully during the planning process for Part 3A projects, to ensure that the project is permissible. Failure to comply with relevant environmental planning instruments could lead to a court finding that the project approval is void.

Proponents of Part 3A projects should consider seeking concept plan approval under section 75O of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act) to eliminate this risk.

Background

Development may be declared a 'major project' to be assessed under Part 3A (Major Infrastructure and Other Projects) of the EP&A Act. These projects, which are usually assessed by the Department, require the Minister for Planning's approval because they are of a particular type (deemed significant to the state), or they are within a state-significant, or other specified, site.

On 26 February 2009, the Minister for Planning granted major project approval under Part 3A to NSW Sport and Recreation for the expansion of the existing Hill Top Rifle Range into the Southern Highlands regional shooting complex. Hill Top Residents Action Group (the applicant) challenged the approval in the Land and Environment Court.

Return to top

Land and Environment Court decision

The main ground of challenge was that the carrying out of the project was prohibited under Part 3A of the EP&A Act and the State Environmental Planning Policy (Major Projects) 2005 (NSW) (the SEPP). Clause 11 of Part 3 of Schedule 3 to the SEPP dealt with development relating to the Southern Highlands regional shooting complex and provided that:

Development, other than development that is permitted with or without consent on land within a zone, is prohibited on land within that zone.

Part of the project site was zoned 'Environmental Conservation', which only permitted development for the purposes of 'environmental protection works, drainage, environmental facilities and roads'. The applicant submitted that a 'range danger area' proposed in this zone was prohibited, as it was to be used for the purposes of capturing bullets, and carrying out fencing and signage work to exclude the public, and these were prohibited within the zone.

Justice Biscoe upheld this, holding that the range danger area was not a permissible use in the part of the site zoned as 'environmental conservation'. Further, he found that the range danger area was an essential part of the project that could not be severed from it. This meant that other parts of the project beyond the 'Environment Conservation' zone still could not be developed. His Honour held that the approval was void, and made an order restraining NSW Sport and Recreation from doing anything further on the site under the project approval.

Return to top

Implications

This decision highlights the importance of ensuring that all applicable zoning controls in environmental planning instruments are complied with in Part 3A projects if required, and are carefully scrutinised during the planning process. Failure to do so could void the entire project, even if only part of the project constitutes an impermissible use. This is especially important given that broad open standing provisions in the EP&A Act and other NSW environmental planning statutes allow any person to bring a challenge to an approval's validity.

Proponents of Part 3A projects should also consider whether a concept plan under s75O of Part 3A is appropriate in the circumstances. Where the Minister has approved the lodgment of a concept plan, it is open to the Minister to approve the project, despite it being a prohibited use of the land the subject of the project application.

For further information, please contact:

Return to top

Share with

What are these?

 

 

Recent Environment & Planning publications