What is a SEPP and How Does It Override Council Controls?

State Environmental Planning Policies in NSW: What They Are and When They Apply

State Environmental Planning Policies, known as SEPPs, are planning instruments made by the NSW State Government. They operate at a state level and can override both LEPs and DCPs in specified circumstances. Understanding how SEPPs interact with local planning controls is essential for any development application in NSW.

In short: A SEPP is a state-level planning instrument that sets planning policy on specific topics or development types. Where a SEPP conflicts with a council LEP or DCP, the SEPP generally prevails.

Key SEPPs in NSW Planning

Several SEPPs are relevant to most development scenarios:

State Environmental Planning Policy (Housing) 2021 Covers secondary dwellings, dual occupancies, boarding houses, co-living housing and the low and mid rise housing code. Overrides some LEP and DCP provisions relating to these housing types.

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Sets out what development is exempt from approval and what can proceed as complying development. This is the Codes SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021 Applies to development on or near classified roads, public transport corridors and infrastructure facilities.

State Environmental Planning Policy (Resilience and Hazards) 2021 Addresses flood risk, coastal management, contaminated land and acid sulfate soils.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Deals with biodiversity conservation, vegetation clearing and habitat protection.

State Environmental Planning Policy (Planning Systems) 2021 Covers miscellaneous planning matters including signage, temporary structures and development near airports.

How Do SEPPs Override Local Controls?

SEPPs include provisions that expressly state when they prevail over an inconsistent LEP or DCP. This is usually stated in the SEPP itself with language such as: "this Policy prevails over [the relevant LEP or DCP] to the extent of any inconsistency."

However, SEPPs do not override all local controls across the board. The extent of the override is limited to what is expressly stated. An LEP provision that is not inconsistent with the SEPP remains in force.

Step-by-Step: Applying a SEPP to Your Project

1. Identify the nature of your development and the relevant SEPP.

2. Read the SEPP provisions that apply to your project type.

3. Identify any inconsistencies between the SEPP and the applicable LEP or DCP.

4. Apply the SEPP where it prevails, and the LEP or DCP where the SEPP does not expressly override them.

5. Document this analysis in the SEE.

Real-World Examples

Example 1: Secondary dwelling in a zone where the LEP is silent 

A homeowner wants to build a secondary dwelling on a lot zoned RU2 Rural Landscape. The LEP does not list secondary dwellings as a permissible use in the zone. However, the Housing SEPP extends the permissibility of secondary dwellings to this zone, overriding the LEP to the extent of the inconsistency. The SEE must ground the permissibility in the Housing SEPP, not the LEP.

Example 2: Dual occupancy DCP controls overridden 

A council DCP sets a minimum lot size of 700sqm for dual occupancy development. The Housing SEPP sets a minimum lot size of 600sqm for Torrens title dual occupancies in certain zones. The SEPP prevails to the extent of the inconsistency, and the applicant can rely on the 600sqm minimum.

Common Misconceptions

"A SEPP overrides everything in an LEP." 

No. SEPPs only override LEP provisions to the extent expressly stated. LEP provisions that are not inconsistent with the SEPP remain in full force.

"SEPPs are temporary measures." 

SEPPs are formal planning instruments with ongoing effect unless repealed or amended.

"If a SEPP applies, I don't need to check the LEP." 

You must always check both the SEPP and the LEP. The SEPP may only address some aspects of permissibility, and the LEP will govern everything else.

Frequently Asked Questions

Where do I find the relevant SEPP for my project? 

All SEPPs are published on the NSW legislation website (legislation.nsw.gov.au) and the NSW Planning Portal.

Can a SEPP make a prohibited use permissible? 

In some circumstances, yes. The Housing SEPP, for example, can make certain housing types permissible in zones where the LEP would otherwise prohibit them.

Do SEPPs apply to CDCs? 

Yes. The Codes SEPP is the primary instrument governing CDCs.

Can a council refuse to apply a SEPP? 

No. SEPPs are legally binding state instruments. Council must apply them.

How often are SEPPs updated? 

SEPPs are amended regularly. Always use the current version published on the legislation website rather than relying on older printed copies.

What is the difference between a SEPP and a SREP? 

A SREP (State Regional Environmental Plan) was an older form of regional planning instrument. Most SREPs have been repealed and replaced by SEPPs or LEPs.