Law Assignment Essay

What does ‘characterization’ mean in environmental planning law and what effect does s.106 of the Environmental Planning and Assessment Act 1979 (NSW) have in relation to this?

In environmental planning law, “characterization” refers to a set of procedures used for formulating and determining applications for land use development. At its minimum interpretation, characterization with respect to the development is centrally concerned with the location and allocation of development about its characteristics on the land. In this minimalist interpretation, the role of characterization is to provide a framework within which efficient criteria for formulating and enforcing regulatory decisions on development is made.
The Environmental Planning and Assessment (EP&A) Act of 1979, section 106, defines the existing use of land, work or building. In this context, the meaning of existing use is twofold. Firstly, as the lawful use of premises, work or land before the coming into force of an environmental planning instrument (EPI) such as LEPs and SEPPs. Secondly, as the use for which permission for development was given before the initiation of the provisions of an EPI (NSW.gov, 2014).

Administered by the NSW Department of Planning, the EP&A act outlines the management and development processes regarding the use of land. It also gives direction on the process for formulating environmental plans that regulate land use. The Act stipulates two types of environmental planning instruments (EPIs): Local Environmental Plans (LEPs) and State Environmental Planning Policies (SEPP). “Characterization” in relation to subsection 106 of the Act, has consistently had a threefold function. Firstly, with respect to land use change and development, it provides long-term strategic context for decision making. Secondly, it is used for linking land use allocation and the terms of development to a number of planning considerations such as socio-economic and environmental changes. Thirdly, it provides a mechanism for coordinating and regulating the flow and stagnation of the various development projects. Thus, it prescribes the termination procedure for projects that stagnate without the possibility of future revival.

What is the effect of ss.79C, 94 and 97 of the Environmental Planning and Assessment Act 1979 (NSW)

Subsection 94 talks about the Contribution towards provision or improvement of social amenities or services. In addressing the above issues, it regulates the change for approval land use, minor external works and internal alterations to identified commercial and industrial premises. Under this code, the most types of land use development are mainly either exempt development or complying development. This code states that any proposed land development necessitates consent unless permitted without consent by a certifying authority. This subsection prescribes three pathways for development. Firstly, exempt development that does not require approval but meets a certain set of standards. Secondly, complying development that meets certain predetermined standards of development and can be assessed by a certifying authority and lastly, merit-based assessment, which requires a consent authority to assess development applications (DA). This clause streamlines development approval processes and reduces unnecessary complexity in development applications.

Subsection 97 addresses the issue of lapsing of consent. It spells out the duration of consent and circumstances under which the consent can be reduced by the consent authority. However, the reduction can be made if there is an adverse effect or contribution for the provision or augmentation of the public amenities and public services concerned (NSW, 2014).
Subsection 79 deals with the evaluation of development applications (DA). Under this sub-clause, DA proponents are required to nominate a planning instrument in their application. Consequently, they must use the standards set out in that instrument

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