This article is in response to a question about when development consent is required for road construction.
The question is:
I am looking to do an infill subdivision in an established residential area. Is development consent from my local council required if I want to build a new road and connect to an existing road? Or, if the local council is the roads authority, do I only require an approval under section 138 of the Roads Act?
The answer is – it depends!
A local environmental plan (LEP) is a piece of legislation that guides planning decisions for local government areas through zoning and development controls. Each local government area will have one or more LEPs.
In 2006, the Department of Planning & Infrastructure (Department) created a common format and structure for LEPs to be rolled out across all local government areas (known as the Standard Instrument LEP). The Standard Instrument LEP was progressively rolled out and is now used throughout New South Wales. It has mandatory clauses that must be implemented in every LEP, and optional clauses that may or may not be included in the LEP.
The Standard Instrument LEP defines Roads as:
“…a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road.”
Under the Roads Act 1993 (Roads Act), relevant definitions include:
- public road, which is defined as “any road that is opened or dedicated as a public road, whether under this or any other Act or law, and any road that is declared to be a public road for the purposes of this Act.”
- private road, which is defined as “any road that is not a public road.“
- classified road, which is defined as “any of the following:
- main road;
- controlled access road;
- secondary road;
- tourist road;
- transitway; or
- State work.“
The Standard Instrument LEP says that Roads must be included as either “permitted with development consent” or “permitted without development consent” in every land use zone.
In unusual cases, land might be unzoned under the LEP in the relevant local government area. The Standard Instrument LEP says that development in any unzoned land throughout New South Wales can only occur with development consent.
Generally, it will be possible to check the LEP in the relevant local government area to find out the zoning of the land, and whether Roads are “permitted with development consent” or “permitted without development consent” in that particular zone. In some instances, zoning information may be in other legislative documents relating to your land. Instead of searching through legislation, it may be easier to determine the zoning of a specific address by:
- clicking here to access the NSW Planning Portal, a free platform by the NSW Government which provides interactive planning information;
- speak to a town planner; or
- contact your local council to discuss.
The question also refers to consent under section 138 of the Roads Act (Roads Act Consents). Since the proposed work involves carrying out work on a road, it will require a Roads Act Consent. Click here to read more about Roads Act Consents.
Roads that are “permitted with development consent” or are proposed on unzoned land
If Roads are “permitted with development consent” or are proposed on unzoned land, development consent is required and a development application must be lodged with the local council to build the road.
The proposed works will be assessed under Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act). Part 4 of the EPA Act details the assessment procedures a local council must undertake when assessing the environmental impacts of development applications. It requires the local council to “take into consideration” specific relevant matters as part of their assessment.
It will also be necessary to obtain a Roads Act Consent. An application for a Roads Act Consent can be made at the same time as the development application. Environmental assessment of the application for a Roads Act Consent occurs as part of the development application assessment.
Roads that are “permitted without development consent”
If Roads are “permitted without development consent”, development consent is not required, and you are not required to lodge a development application with the local council. However, it will still be necessary to apply for a Roads Act Consent, and a separate assessment procedure under the EPA Act will apply.
Part 5 of the EPA Act details the assessment procedures a local council must undertake when assessing the environmental impacts of an activity that does not require development consent, but does require some other kind of approval (like a Roads Act Consent).
This means that if Road are “permitted without development consent”, it will still be necessary to apply for a Roads Act Consent, and the local council will assess the proposed works under Part 5 of the EPA Act.
Part 5 of the EPA Act requires the local council to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment“. The Land and Environment Court has considered this phrase, and has said that the assessment must be reasonable, and it is not necessary an assessment that covers every topic or every avenue advocated by experts.