Posted on April 9, 2019 by Megan Hawley and 1

The Aboriginal Land SEPP

The State Environmental Planning Policy (Aboriginal Land) 2019 (‘SEPP‘) came into force on 6 February 2019. The SEPP provides for the making of ‘development delivery plans‘ (‘DDPs‘) for land owned by Local Aboriginal Land Councils (‘LALCs’) which must be considered when determining development applications. DPPs are also required to be considered when preparing planning proposals.

At present the SEPP only applies to certain land owned by Darkinjung Local Aboriginal Land Council (‘Darkinjung’) in the Central Coast Council local government area.

Application of the SEPP 

The SEPP applies to land owned by a LALC which is shown on maps attached to the SEPP. It currently only applies to certain Darkinjung land.

The application of the SEPP can be expanded to apply to other land owned by Darkinjung or land owned by other LALCs by amendment of or addition to the maps. However it is not anticipated that this will occur until after a review to be conducted in early 2020.

Preparation of DDPs

The SEPP provides for the preparation of DDPs for the land to which it relates by the relevant LALC or the Minister for Planning in consultation with the relevant LALC. The Minister must approve the DDP.

A DDP must set out (under clause 9(1) of the SEPP):

• the general objectives of the LALC for the land;
• the nature of the development proposed for the land;
• the basis on which the development is proposed, having regard to economic, social and environmental factors;
• strategies, actions and a program for achieving the objectives; and
• other matters the Minister thinks appropriate.

A DDP may also set out (under clause 9(2) of the SEPP):

• the bulk, scale and size of development proposed for the land to which the plan applies;
• measures to support Aboriginal cultural heritage and biodiversity conservation relating to the land; and
• proposals for the provision of public utility infrastructure and roads.

When preparing a DPP regard must be had to regional strategic plans for the area, community, land and business plans adopted by the LALC under the Aboriginal Land Rights Act 1983 and other matters the LALC and Minister consider relevant.

It is intended that a DDP for the land owned by Darkinjung to which the SEPP currently applies will be approved by 1 September 2019.

Determination of DAs

The SEPP makes it necessary for consent authorities to consider a DDP when determining a development application for land to which it applies.

However, it is only the discretionary matters which may be included in the DDP under cl9(2) of the SEPP which are to be considered, that is, any provisions regarding bulk, scale and size of proposed development, protection of Aboriginal cultural heritage and biodiversity, and infrastructure provision.

There is no obligation to consider, in the development assessment process, the objectives for the land contain in the DDP, for example.

Whilst the matters included in the DDP under cl9(2) of the SEPP are to be considered, there is nothing in the SEPP to the effect that provisions of any other planning controls applicable to the land do not apply, or are modified in any way as a result of the provisions of the DDP.

Therefore, if a DDP proposes a certain bulk, scale and size of development, whilst that needs to be considered, it does not overcome any restrictions on the bulk, scale and size of development contained in any applicable local environmental plans or development control plans.

The SEPP also provides that certain types of development on land to which the SEPP applies is regionally significant development. A Sydney district or regional planning panel is the consent authority for such development.

The types of development which are regionally significant are development with a capital investment value of more than $5 million, development which attracts more than 50 submissions, or development the subject of a DA to the relevant council which has not been determined within 60 days, where a request is made for the DA to be determined by the panel (provided the applicant has not caused the delay).

Ministerial Direction and Planning Proposals

On the same day that the SEPP was made, the Department of Planning and Environment (‘DPE‘) published the Ministerial Direction 5.11 ‘Development of Aboriginal Land Council Land’ , made pursuant to s9.1 of the Environmental Planning & Assessment Act 1979, and Planning Circular PS 19-003

The Ministerial Direction requires any relevant DDP to be considered when a planning proposal authority is preparing a planning proposal for land to which the SEPP relates.

If there is no DDP, then the ‘interim development delivery plan’ published on DPE’s website at the date of making the Ministerial Direction (being 6 February 2019) is to be considered. The only interim development delivery plan published at that date was the Interim Darkinjung Development Delivery Plan.

If a DDP has been made in respect of land, it would therefore be possible for an application to be made by a LALC to amend planning controls relating to its land, and the provisions of the DDP in respect of the scale of development would need to be considered by the planning proposal authority when preparing the planning proposal. This could potentially strengthen any application by a LALC to increase development potential of its land.

It is to be noted that the DDP only needs to be taken into account in preparing the planning proposal. There is no requirement for the planning proposal to give effect to or be consistent with the DDP.

However the Planning Circular provides that in respect of land subject to a DDP that in addition to the ‘rezoning review’ available to all persons seeking a review of a rezoning decision,  an ‘independent proposal review’ may also be requested by a LALC before a planning proposal is submitted to DPE  for a Gateway determination. The review is conducted by the relevant regional or Sydney planning panel (or the IPC). The Planning Circular sets out the strategic merit test which will be applied as part of that review.

Conclusion

The introduction of DDPs in the SEPP is part of the Department’s initiative to ‘achieve better economic outcomes’ for LALCs from their land.

Currently the SEPP and Ministerial Direction have limited effect, being relevant only to certain parcels within the Central Coast local government area. However, depending upon the outcome of the review in 2020, the application of the SEPP could be expanded to apply across the State to land owned by other LALCs, although it may be some time before DDPs are prepared for other land.

To view the SEPP, click here.

If you have any questions about this article please contact Megan Hawley  on 02 8235 9703 or Elaine Yeo on 02 8235 9712.