The NSW Department of Planning, Industry and Environment (DPIE) has recently released its Discussion Paper ‘A New Approach To Rezonings’.

Among the range of proposed changes to the rezoning process in NSW - a key focus for developers will be the new appeals pathway. We consider in this article the key risks and opportunities that the proposed appeals pathways may present for developers to achieve the commercially viable and efficient rezoning of land.

Key Changes

At a high level, the proposed changes to the rezoning framework are intended to align more closely with the development application process – and to recognise private proponents as applicants for rezoning requests. In this regard, the key changes comprise:

  • allowing private proponents to submit a rezoning application – subject to mandatory and upfront pre-lodgement process;
  • allowing councils to receive and determine private proponent rezoning applications (with no or minimal department involvement in assessment). For example – the existing gateway determination by the department would be removed, and it would be council (and not the department/minister) who assesses and determines whether the rezoning application will be approved;
  • introduces categorisation of rezoning applications (Basic/Standard/Complex/Principal LEP) which informs benchmark timeframes and fees;
  • shifts all merit assessment processes to after exhibition; and
  • gives private proponents a right of appeal against a final decision.

The private proponent will also be responsible for all fees, meeting information requirements, consulting with state agencies, and reviewing and responding to any submissions received during consultation. This contrasts with the existing regime whereby the private proponent may have little control over the processes, or any changes to the proposal.

The changes also seek to change the focus of the minister to receiving and determining, through the department, LEP amendments prepared by councils and public authorities.

New Appeals Pathways

The EP&A Act does not currently contain any statutory right to appeal decisions in relation to the rezoning process.

There are, however, two ‘non-statutory’ ways in which certain decisions in the early stages of the rezoning pathway can be ‘reviewed’ which are:

  • a rezoning review – to the relevant planning panel where there is delay or a council has decided not to forward a planning proposal for gateway determination; and
  • a gateway review – to the Independent Planning Commission where a council or proponent is dissatisfied with the Department’s gateway determination. 

A key gap exists in that there is no current ability to ‘review’ the final decision in relation to a rezoning.

The Discussion Paper floats the idea of introducing an appeal right for private proponents to the Independent Planning Commission (IPC) or the NSW Land and Environment Court (LEC) -  in circumstances where progress has been delayed or the proponent is dissatisfied with the final decision. The appeal will need to be made within specified timeframes (including ‘deemed refusal’ periods in the context of delay).  

In relation to the potential LEC appeal pathway – the Discussion Paper provides that it would largely mirror the existing process for merit appeals in relation to development applications. This would provide proponents with an opportunity for a conciliation conference (allowing the parties to try and negotiate a suitable outcome before incurring the costs of a contested hearing) and, if agreement cannot be reached, a contested hearing in which the LEC considers the planning application afresh – and decides whether to approve or refuse it. 

In relation to the potential IPC appeal pathway, the Discussion Paper acknowledges that this will require the development of a new process – and limited details are provided in the Discussion Paper. However, the Department has indicated that it may mirror the process for the determination of State-Significant Development.

The Discussion Paper provides a useful summary of the key advantages of the LEC and IPC rezoning appeal pathways which we have extracted below:



  • Established processes and procedures relating to merit review could be adapted.
  • Can be costly and time consuming – legal representation is not mandatory but is common.
  • Existing wide-reaching powers enable it to consider fresh evidence and exercise necessary powers.
  • No historical dealings with the merit of strategic planning decisions and may not currently have the expertise.
  • Opportunity for conciliation allows parties to discuss and resolve issues.
  • Adversarial process may not be suited to rezonings.
  • Potential legal proceedings are a strong deterrent against delay or poor decision-making.
  • The court may have an issue intervening in the making of an LEP, being a form of delegated legislation (which is the role of the Minister for Planning and Public Spaces).




  • Likely to be quicker and cheaper.
  • Would be a significant shift in operations, requiring resourcing.
  • More flexible procedure and less adversarial, meaning we can tailor a new process to strategic planning decisions.
  • May not have the expertise to deal with strategic planning decisions.
  • Appropriately independent from government to review government decisions.
  • No opportunity for conciliation – to maintain an efficient process, may need to limit opportunities for changes to proposals and fresh information on review.

A key consideration for developers is whether the appeal pathway to the LEC or IPC should flow from the complexity of the rezoning application (i.e. according to its categorisations as basic, standard or complex).

The LEC may be best placed to deal with basic and standard rezoning applications – where developers will get the benefit of precedent/planning principles to guide future rezoning applications (together with other benefits of the LEC process such as the opportunity to resolve the matter by way of conciliation conference, joint conferencing of experts and powers to compel production of documents). However, we anticipate that the LEC may need to be better resourced in order to achieve the significant improved assessment/determination timeframes contemplated by the Discussion Paper.

The IPC may be best placed, however, to deal with complex rezonings which may require a panel of multi-disciplined experts and which give rise to broader strategic planning issues (such as for example infrastructure capacity issues). This approach would not, however, be without risk to developers particularly if key government agencies are given the opportunity to be heard as part of the appeal pathway. Developers would also be without significant powers available to it in the LEC (such as the production of documents and cross examination of witnesses) which it may require to challenge positions adopted by key government agencies.

Next Steps

The Discussion Paper is currently on exhibition until 28 February 2022 – and NSW Government has indicated that it intends to implement changes to the rezoning framework in 2022.

Please contact us if you have any questions, or would like any assistance drafting a submission, in relation to the Discussion Paper.