Posted on May 10, 2024 by Adriana Kleiss and Lindsay Taylor 9

Issues and difficulties arising from the interaction between development consents and approvals under s68 of the Local Government Act

Where a development is only permissible with a development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and is also an activity under s68 of the Local Government Act 1993 (NSW) (LG Act), uncertainty often arises as to the interaction between the EPA Act and the LG Act, and how the proposal is required to be assessed.

This blog provides guidance on the relationship between development consents and approvals under s68 of the LG Act (s68 approvals) generally, and then, using the example of caravans, tents and moveable dwellings, discusses the complex issues that can arise when the two legislative schemes interact. 

Development may require development consent and a s68 approval

As a starting point, it is important to note that the two legislative schemes operate alongside one another, and neither Act takes precedence over the other. It follows that in order to carry out development lawfully, a person may need both a development consent under s4.16 of the EPA Act and a s68 approval: Hadoat Pty Ltd & O R Ugo Pty Ltd v Bathurst City Council (Unreported decision of Talbot J in the NSWLEC, No 20063 of 1995, delivered on 31 July 1995)

In order to determine whether both a development consent and a s68 approval is required, a separate consideration of each of those Acts, and any relevant environmental planning instrument (EPI), regulation or local policy is required.

An exemption under one Act only has effect in the context of that Act. For example, an exemption under cl77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (Camping Regulation) which provides that in certain circumstances the installation of caravans, tents or a moveable dwelling does not require a s68 Approval, does not operate to make that activity permissible without development consent under the EPA Act, if the relevant EPIs are to the effect that consent is required. It would be necessary, therefore, to consider:

• whether the activity is‘ development’ within the meaning of s1.5 of the EPA Act, and if so,
• to then characterise that development, and then
• determine whether or not any relevant EPI provides an exemption from the need to obtain development consent.

We discuss this example in more detail below. Similarly, an exemption in an EPI from the need to obtain a development consent under the EPA Act does not necessarily mean that no s68 Approval is required.

In our experience, local councils often include as a condition of development consent that a s68 Approval is required before the development can proceed. However, such a condition is not legally necessary because in any case it is an offence under s626 of the LG Act to carry out an activity to which s68 applies without first obtaining an approval under that section. Similarly, there is no need for a Council to refuse a s68 Approval because a development consent is also required in order for the development to proceed. It is a matter for the applicant if they choose to first apply for a s68 Approval. However, as discussed below, in many cases it may be more practical to first obtain a development consent.

Section 4.12 of the EPA Act

Where the consent authority for the development is a council, a person may choose to lodge a single development application (DA) seeking both development consent under the EPA Act and a s68 approval: EPA Act, s4.12(3). This intention would need to be expressly stated in the DA form. A council may apply the provisions of the LG Act to that application as if it were an application under s68 of the LG Act (s4.12(4)). This enables the Council to undertake assessments under the EPA Act and the LG Act simultaneously.

Importantly, if development consent is granted to an application under s4.12(3), then the council is automatically taken to have granted the relevant approval under s68 of the LG Act (s4.12(5)). In our view the effect of s4.12(5) of the EPA Act is that where a DA also seeks a s68 approval, the Council cannot grant development consent under the EPA Act for the proposed development without also granting the requisite s68 approval. This is clearly preferable for a developer, but only where the application is able to demonstrate compliance with the LG Act and relevant regulations and local policy (if any). In some cases this may require the inclusion of details that would otherwise only be developed prior to a construction certificate. However, making an application under s4.12(3) can also be a risk, because if the council determines that the application does not demonstrate compliance under the LG Act, then this would be a reason for the council to refuse the development application.

If a DA does not expressly seek a s68 approval for the proposed development, then a separate application under s68 of the LG Act will be required. Where this occurs, the fact that the Council has already issued a development consent for the proposal does not mean that it is compelled to approve any subsequent separate application under s68 of the LG Act for the same development: I.D.A. Safe Constructions and Grace Bros Pty Ltd v Council of the Municipality of Willoughby (1980) 44 LGRA 400

Assessment of the proposal 

When assessing an application for development consent, the consent authority must complete the evaluation process in s4.15 of the EPA Act. The matters that a consent authority can have regard to under s4.15 are expressed broadly and include any likely impacts of the development, and the public interest.

However, the matters that may be considered by a council in assessing an application under s68 of the LG Act are more prescriptive. When assessing an application under s68 of the LG Act a council must complete the assessment required by s89 of that Act. Pursuant to s89, a council must not grant an approval if the activity would not comply with the requirements of any relevant regulation made under the LG Act. Further, the council must consider any relevant criteria in a local policy adopted by the council, and the principles of ecologically sustainable development (ESD) (LG Act, s89(1)) that are set out in the Dictionary to the Act.

It is only where there are no relevant regulations under the LG Act and no relevant criteria in a local policy, that the council is able to consider “all matters relevant to the application” more generally, ESD and the public interest (LG Act, s89(2)). It follows that in many cases, including any application to which the Camping Regulation applies, the assessment process under the EPA Act enables a more thorough planning assessment of a proposal. It also enables the consent authority to receive and consider public submissions.

For this reason, as a matter of practicality, we consider it preferable for an application for development consent to precede an application under s68 of the LG Act, or for a single application to be made under s4.12(3) of the EPA Act. If this does not occur there is a risk that a s68 approval may be granted in respect of a proposal that is unable to satisfy the consent authority under the EPA Act that development consent should be granted. That is not to say that there is no risk of a s68 application being refused where development consent has already been granted, only that the likelihood is lower, because the assessment under s4.15 of the EPA Act is likely to have captured and addressed issues that would justify refusing a s68 application, whether by requiring amendments to the development or through the imposition of conditions of consent.

Compliance

Finally, it is important to note that in order to carry out development lawfully, a person must comply with the terms and conditions of any development consent and s68 approval that has been granted and applies to the development. The two documents should be read together as it is not uncommon for the conditions in one document to refer to conditions in the other. However, it should not be assumed that compliance with a condition in one document automatically means that a similar condition in the other has been satisfied. In every case it is necessary to give close consideration to the drafting of each condition to determine how compliance is to be achieved.

Example: caravans, tents and moveable dwellings 

In some situations, it can be difficult to determine whether both a development consent and a s68 approval is required, particularly where the proposed land use is identified by either legislative scheme as exempt.

For example, clause 77 of the Camping Reg (discussed above) provides:

“(1)  The approval of the council is not required for the installation of the following—

(a)  2 caravans or tents if they are not occupied for—

(i)  more than 2 consecutive days, and

(ii)  more than 60 days in a 12 month period,

(b)  1 caravan on land occupied by the owner of the caravan in connection with the owner’s dwelling house if the caravan is—

(i)  used for habitation only by the owner or members of the owner’s household, and

(ii)  maintained in a safe and healthy condition,

(c)  a caravan on pastoral or agricultural land if the caravan is merely occupied seasonally by persons employed in pastoral or agricultural operations on the land, or

(d)  a moveable dwelling or associated structure on land to accommodate a person who has been displaced as a result of a natural disaster if the moveable dwelling or associated structure is—

(i)  maintained in a safe and healthy condition, and

(ii)  removed within—

(A)  2 years after it is installed, or

(B)  if the relevant local approvals policy for the moveable dwelling or associated structure specifies a longer period—the longer period.”

Where the installation of a caravan, tent or moveable dwelling is exempt from the requirement for a s68 approval pursuant to cl77, it does not necessarily follow that no development consent is required for the land use. In some cases, the installation and use of caravans or tents on land may amount to development for the purpose of a camping ground or caravan park, depending on the facilities available. Further, the occupation of a caravan parked or moveable dwelling on land may amount to development for the purposes of residential accommodation, because the definition of residential accommodation includes a ‘place’ as well as a building: Warrumbungle Shire Council v Yongmei Ou [2018] NSWLEC 70. 

In order to determine the proper characterisation of the development, a careful consideration of the particular use that is being made of the land will be necessary, including in relation to the particular structure, the amenities available, the length of time that it is being occupied, and whether the use is on a commercial basis. These matters may present challenges for a consent authority in determining whether development consent is required, particularly in an enforcement context.

Further, even if the land use is properly characterised as a land use regulated by the relevant local environmental plan, such as a camping ground or caravan park, it will still be necessary to consider whether a state environmental planning policy operates to make that land use exempt development. For example, the use of land for the purposes of a caravan park or camping ground may be exempt development where it is used for temporary emergency accommodation: see State Environmental Planning Policy (Housing) 2021 (NSW), s135.

The complexity involved in determining the approvals required for the installation and use of caravans, tents and moveable dwellings is just one example of the issues that can arise where a land use is regulated by both the EPA Act and the LG Act.

If you wish to discuss the issues raised in this post, please contact Adriana Kleiss on 8235 9718 or Lindsay Taylor on 8235 9701.