What is “development”?

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What is “development”?

By Ivana Hayman and Alyce Kliese

The word “development” is a multi-faceted term and it is important to look at all the surrounding facts and context of an activity to accurately establish whether an activity can be classified as such. If so, it can be regulated by the Environmental Planning and Assessment Act 1979 (the EP&A Act).

The definition of “development”

The primary piece of legislation that regulates development and environmental and planning law is the EP&A Act. The word “development” is defined in section 1.5 of the EP&A Act as:

       (1)  For the purposes of this Act, development is any of the following—

             (a)  the use of land,

             (b)  the subdivision of land,

             (c)  the erection of a building,

             (d)  the carrying out of a work,

             (e)  the demolition of a building or work,

             (f)  any other act, matter or thing that may be controlled by an environmental planning instrument.

The term “use of land” is further defined under the definitions section of the EP&A Act in section 1.4 as “use of land includes a change of building use”. For example, in Warringah Council v Swain [2010] NSWLEC 68 it was determined that storage on the front yard of a residential premises was considered development.

The term “erection of a building” is also defined in section 1.4 of the EP&A Act as:

       (a)  the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or

       (b)  the placing or relocating of a building on land, or

       (c)  enclosing a public place in connection with the construction of a building, or

       (d)  erecting an advertising structure over a public road, or

       (e)  extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road,

       but does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).

Do I need development consent for all types of “development”?

The short answer is no. Some types of “development” do not require development consent.

For example, “exempt development” is defined in the EP&A Act under section 1.6 as:

       (1)  The carrying out of exempt development does not require—

             (a)  development consent under Part 4, or

             (b)  environmental impact assessment under Division 5.1, or

             (c)  State significant infrastructure approval under Division 5.2, or

            (d)  a certificate under Part 6 (Building and subdivision certification).

       (2)  Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact.

All exemptions are listed under Part 2 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Exempt & Complying Code).

The Exempt & Complying Code includes requirements for particular development activities which do not require consent from Council or another consent authority. These include types of development such as the installation of air conditioning units, building backyard decks, fences, letterboxes and dog kennels. These types of developments can be carried out with no development consent, provided that you meet the “development standards” set out in the Exempt & Complying Code.

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