What is Permissibility and How Do I Know if My Use is Permitted on My Land?

Permissibility in NSW Planning: The First Question to Answer

Before you design a building, sign a lease or submit a DA, there is one question that must be answered first: is the proposed use permissible on this land? This is the concept of permissibility, and it is the foundation of the NSW planning system.

In short: Permissibility refers to whether a particular land use or development activity is legally allowed on a given parcel of land under the applicable LEP and any relevant SEPPs.

How is Permissibility Determined?

Permissibility is determined by:

1. The land use zone applying to the property under the LEP

2. The land use table in the LEP for that zone, which lists uses as permitted without consent, permitted with consent, or prohibited

3. Any SEPPs that may extend or restrict permissibility beyond what the LEP provides

If a use is not listed as permitted (with or without consent) in the land use table, it is prohibited in that zone. A prohibited use cannot be approved by council under any circumstances.

The Three Permissibility Categories

Permitted without consent: Development can proceed without any planning approval. This typically covers uses such as home occupations in residential zones or certain types of agriculture in rural zones.

Permitted with consent: Development can proceed, but only after obtaining a development consent (DA or CDC). This is the most common category.

Prohibited: The use or development cannot lawfully occur in the zone. No DA or variation can change this.

Step-by-Step: Checking Permissibility

1. Identify the property's land use zone using the LEP zoning map (available on the NSW Planning Portal).

2. Open the LEP for the relevant council and find the land use table for that zone.

3. Identify the correct land use category for your proposed activity. Use the Standard Instrument definitions to ensure you are using the right term.

4. Check whether the use appears under permitted without consent, permitted with consent, or is not listed (and is therefore prohibited).

5. Check any applicable SEPPs for additional permissibility provisions.

6. If uncertain, seek advice from a town planner NSW.

Real-World Examples

Example 1: Food manufacturing in an industrial zone

A food manufacturer wants to lease a unit in an E3 Productivity Support zone. The proposed activity involves large-scale production and processing. Under the LEP, light industry is permissible with consent, but the scale of the operation brings it within the definition of heavy industry, which is prohibited. The manufacturer cannot lawfully operate from this site without a rezoning.

Example 2: Childcare centre in a residential zone

A childcare operator wants to open a centre in an R2 Low Density Residential zone. The LEP lists childcare centres as permissible with consent in the R2 zone. A DA is required, but the use is permissible, meaning approval can in principle be granted.

Common Misconceptions

"If a business was operating from a property before I bought it, the same use is automatically permitted."

Not necessarily. An existing use right may apply, but this is a separate legal concept with specific conditions. Seek advice before assuming an existing use right protects your proposed activity.

"I can run any business from a commercial zone."

Commercial zones have land use tables just like residential zones. Not all business types are permissible in all commercial zones.

"If a use is not listed in the table, I can do it."

If a use is not listed and it is not a permissible use anywhere in the zone, it is prohibited. The absence of a listing is not permission.

Frequently Asked Questions

What if my proposed use does not fit neatly into one land use definition?

This is common. A town planner NSW can advise on the most appropriate land use classification and present a case to council if there is genuine ambiguity.

Can I apply for a rezoning if my use is prohibited?

Yes. A Planning Proposal is the mechanism to seek a rezoning. It is separate from a DA and involves council and the Department of Planning.

What are existing use rights?

If a use was lawfully operating before it became prohibited by a planning instrument, it may continue under existing use rights. These rights have limits and conditions under the EP&A Act.

Does permissibility differ between councils?

Yes. While the Standard Instrument provides consistent zone names and definitions, each council's LEP determines what is permissible in each zone within their area.

Is a home business permissible in a residential zone?

In most residential zones, home businesses are listed as permissible with consent or are covered by exempt development provisions, subject to meeting specific standards.

Who makes the final call on permissibility?

Council's assessing planner determines permissibility during DA assessment. The Land and Environment Court has jurisdiction to review permissibility decisions on appeal.