The majority of development in NSW requires development consent. This can include for example approval for the use of land, change of use of land, subdivision of land, erection and/or demolition of a building or structures.
There are currently multiple planning pathways for obtaining the relevant consent, including:
- Exempt development (development that is of minor impact and does not need development consent);
- Complying development that can be approved by way of a complying development certificate issued by Council or a private certifier; and
- Development consent issued by Council under Part 4 of the Environmental Planning and Assessment Act 1979 (commonly referred to as a DA).
In certain circumstances approval from the State Government or an independent planning panel may be required.
Importantly, a development consent runs with the land and can be relied upon by all users and occupiers of the land, not just the person who obtained the original consent.
Do you need a new consent to change the use of a premises?
The change of “use” of buildings and the fit out generally require consent under one of the above pathways – exempt, complying development, or development consent (DA). It is important to consider what consents are already in place and if this is sufficient for the proposed uses.
A wide range of changes of use are listed as exempt and complying development under the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008.
What can happen if you don’t have the appropriate consent in place?
Failure to obtain the appropriate consent before carrying out a development can result in development control orders, such as stop work orders and demolitions orders being issued in relation to the works, as well as fines. Failure to comply with development control orders can also result in legal action.
The maximum penalties for an unlawful or illegal development is up to $5 million for a corporation and up to $1 million for individuals. There are also continuing offence provisions where penalties can be accumulated for each day that the offence continues.
Do you need to obtain development consent if you are a commercial tenant?
Under the standard commercial tenancies lease, it is the responsibility of the tenant to ensure that the correct consent and/or licences are obtained for the use of the premises prior to commencement of the use (occupation or trade). Tenants should consider both existing consents and whether any additional consents are needed.
Tenants must comply with any existing conditions of consent that apply to the premises. As such, it is important to be aware of what existing consents apply to the premises when entering into a lease.
Further considerations
Both owners and tenants should consider if the appropriate consents are in place to avoid fines and penalties, as well as disruption to business and reputational risk.
Steps you can take to find out what consents apply to a property are:
- Search Council’s Development Application tracker to review any recent consents;
- Submit an Information Request under the Government Information (Public Access) Act 2009 to Council for any existing development consents that apply to the property; and
- Approach a planner or solicitor specialising in planning and environment law for further advice.
Our team is able to assist you in obtaining a consent or advising on the appropriateness of current consents. We can assist with all types of developments, small and large.
Please reach out if you have any questions.
Authors: Hasti Kalarostaghi, Jessica Baldwin and Adam Kennedy-Hunt
