Department’s Position on Spot Rezoning Explained

A recent planning circular issued by the Department of Planning (the Department) has shed some light on its current approach to spot rezoning.

Earlier this year, with the introduction of the LEP Review Panel (the Panel), the Department informally indicated that it would be clamping down on spot rezoning (as discussed in our March 2006 update read more...). All proposed draft LEPs are now subject to review by the Panel so the Department is able to exercise greater control of a Council’s LEP-making process and has clearly discouraged Councils from considering spot rezoning applications.

The issue of spot rezoning has become particularly significant in light of the recent changes made to existing use rights and the moratorium on certain types of seniors living development. The dramatic reduction in development potential of sites with existing use rights has led many developers to rely increasingly upon spot rezoning applications. Similarly, the moratorium on self-care seniors living developments in rural zones has left many affected developers with little option but to lodge spot rezoning applications. How these applications will be considered by Councils and the Department is therefore a matter of great importance to developers.

The planning circular provides two main explanations for the Department’s stance on spot rezoning:

1. fairness and transparency of planning process: it is implied that the result of a spot rezoning may be achieved by other planning means, such as changing the permissible uses in a zone generally, or incorporating the site into a broader plan including similar sites or uses
2. reducing the number of amending LEPs to reduce administrative load: the Department suggests that an amending LEP not be prepared for every individual site that proposes to be rezoned, but rather that LEPs be subject to more substantial amendments less frequently.

This explanation is enlightening as it indicates that alternative means may be available to achieve the goal of changing the permissible use of a site.

It is not the result of the process of spot rezoning that the Department is opposed to per se, but rather the process itself, which is seen as non-transparent and administratively burdensome.

The Department was careful to point out that spot rezoning may still be appropriate in certain circumstances, where the Council are able to provide justification as to why the matter needs to be dealt with by way of a spot rezoning LEP. Justification should take account of the public interest and explain the implications of not proceeding at that time.

The circular restated the criteria to be addressed when considering a spot rezoning application (initially provided with the introduction of the LEP Review Panel):

• Will the LEP be compatible with agreed State and regional strategic direction for development in the area (eg land release, strategic corridors, development within 800 metres of a transit node)?

• Will the LEP implement studies and strategic work consistent with State and regional policies and Ministerial (section 117) directions?

• Is the LEP located in a global/regional city, strategic centre or corridor nominated within the Metropolitan Strategy or other regional/subregional strategy?

• Will the LEP facilitate a permanent employment generating activity or result in a loss of employment lands?

• Will the LEP be compatible/complementary with surrounding land uses?

• Is the LEP likely to create a precedent; or create or change the expectations of the landowner or other landholders?

• Will the LEP deal with a deferred matter in an existing LEP?

• Have the cumulative effects of other spot rezoning proposals in the locality been considered? What was the outcome of these considerations?

Unless positive responses are given to most of these criteria, a Council is unlikely to find suitable justification for submitting a spot rezoning draft LEP to the LEP Review Panel.
By Anthony Whealy and Christina Renner

This publication is provided to clients and correspondents for their information on a complimentary basis. It represents a brief summary of the law applicable as at the date of publication and should not be relied on as a definitive or complete statement of the relevant laws.