We are sometimes asked “what effect does an old Local Government Act approval have under a modern Local Environmental Plan”. This post outlines the general planning law mumbo jumbo, as we understand it, applicable to this situation.
Historic building approvals establish the lawfulness of the buildings to which they relate. This aspect was regulated by Section 314 LG Act 1919 (the 1919 Act). Those approvals have the consequence of approving the use of the buildings to which they relate pursuant to Section 316 of the 1919 Act.
When planning controls such as an Interim Development Order, Planning Scheme or Local Environmental Plan began to apply, no further approval for the continued use of a building was required. If the buildings had been lawfully constructed and they were then being lawfully used, Section 342U(4) of the 1919 Act obviates the need for any consent. Upon commencement of the Environmental Planning and Assessment Act (EPA Act ) on 1 September 1980, that same position remained by operation of Section 109 of that Act. Further, as enacted, the EPA Act did not repeal the provisions of Pt 11 of the 1919 Act.
The 1919 Act was repealed by the Local Government Act 1993 (the 1993 Act). By clause 14 of Schedule 7 to the 1993 Act, a building approval given under the 1919 Act is taken to be an approval given under Division 1 of Part 1 of Chapter 7 of the 1993 Act. By operation of clause 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, the (deemed) building approvals under Section 68(1) of the 1993 Act are “taken to be” development consents under the EPA Act.
As a consequence, the deemed development consents have the enduring nature of development consents that have become operative by implementation and are not subject to abandonment by discontinuance.
Please note that the above is general planning information. If you have a specific issue you should obtain expert town planning law advice from an experienced lawyer.
PLANNERS NORTH, Town Planners, Northern Rivers, NSW