Development approvals by Crown authorities are a source of confusion for many of our clients. We’ve leaned into Nathaniel Murray’s years of hard-won Town Planning experience, to explain the process and provide tips for your next Crown development.

The main problem I come across is confusion around the difference between exempt development and development without consent. While they sound similar, they are very different in terms of how they’re dealt with under the legislation.

Not all developments follow the same approval path, especially when it comes to Crown development. Whether you’re delivering a new school, upgrading a hospital, or building essential infrastructure, it’s vital to understand whether your development needs formal development consent and, if so, under which part of the Environmental Planning and Assessment Act 1979 (EP&A Act).

This article clarifies the different pathways for Crown development under the NSW planning system, helping proponents, consultants, and approval authorities navigate their obligations.

Two Pathways: Development With or Without Consent

When not exempt or complying development, Crown developments in NSW can generally proceed via one of two statutory pathways:

1) Development With Consent (Part 4 – Crown Development Application)

This is the familiar DA process with a twist, where development consent by or behalf of the Crown body (also referred to as a ‘public authority’) is sought through the local council or a relevant consent authority. These applications are known as Crown Development Applications and are governed by Division 4.6 of the EP&A Act. 

What makes them unique is that: 

• The consent authority cannot refuse a Crown DA without the approval of the Minister or the Crown applicant. 

• The consent authority cannot impose any conditions of an approval without those conditions being agreed to by the Crown applicant or the Minister. 

• If the consent authority fails to decide the application within 70 days, the Crown may escalate it to a Planning Panel or the Minister. 

This process maintains the rigour of public exhibition and statutory assessment, while recognising the Crown’s broader mandate to deliver community infrastructure.

2) Development Without Consent (Part 5 – Division 5.1)

In some cases, an Environmental Planning Instrument (a Local Environmental Plan or State Enviornmental Planning Policy) may permit the Crown/public authority to carry out development without development consent. In these instances, the Crown still has a duty under the EP&A Act to consider the environmental impacts of such activities. To do this, they undertake an environmental assessment under Division 5.1 of the EP&A Act, through the preparation of a Review of Environmental Factors (REF). 

This self-assessment undertaken by the Crown/public authority (as both the Proponent and its own Determining Authority) is scalable based on the scope of the development, but must always: 

• Consider the potential impact “to the fullest extent possible” over a wide range of environmental factors (as set out in the EP&A Regulations), including any applicable Guidelines that cover matters such as social, ecological, and heritage impacts. 

• Determine whether the activity is likely to have significant environmental impacts. If so, a full Environmental Impact Statement (EIS) is required, and the activity can no longer be self-determined and becomes state significant infrastructure. 

• Include a statement of certification by a qualified practitioner that the REF is in accordance with the EP&A Act, the Regulations, and the Guidelines, as well as that the REF is neither false nor misleading. 

In some cases, the REF, supporting reports, and any Decision Statement may be subject to mandatory publication requirements, especially for high-value or high-impact proposals. 

REFs offer flexibility for minor works or straightforward developments, but the process can quickly become complex and resource-intensive when multiple environmental issues are in play. 

Unlike other planning approval pathways, the legislation places the onus of fulfilling planning pathway requirements (including compliance with development standards required to enable the use of the development without consent pathway, any prerequisites, and consultation requirements) on the Crown as the Proponent and Determining Authority. 

Do Crown Projects Need Construction Certificates?

Yes, but not in a conventional sense. 

Under Section 6.28 of the EP&A Act, Crown building work (including building, demolition or incidental works carried out by or on behalf of the Crown) must be certified to comply with the Building Code of Australia (BCA). 

This certification, referred to as a Crown Certificate: 

• Replaces the requirement for a construction certificate, occupation certificate, and subdivision certificate. 

• Must be undertaken by or on behalf of the Crown. 

• Still requires full NCC compliance and the appointment of a suitably qualified certifier. 

In short, Crown projects don’t bypass certification; they follow an equivalent but separate pathway. 

A Crown Certification is followed by the issuing of a Completion Certificate in lieu of an Occupation Certificate. 

What About Contributions and Other Approvals?

Contributions 

• For Crown DAs, contributions under s7.11/s7.12 may be imposed as a condition of consent, however, the Crown must review and endorse any such conditions. 

• The State Government 2025 Practice Note encourages councils to consider the public benefit of Crown development before levying contributions on a Crown DA. 

• For development without consent (under Division 5.1), no contributions can be imposed, as there is no consent authority issuing “development consent”. 

Other Legislation Still Applies 

Even where development consent is not required under the EP&A Act, Crown developments may still need approvals, permits, or achieve compliance under other legislation, including: 

• Heritage Act 1977 (for heritage approvals) 

• Protection of the Environment Operations Act 1997 (for pollution or licensing) 

• Disability Discrimination Act 1992 

• Crown Land Management Act 2016 

• Building and Construction Industry Long Service Payments Act 1986 (levies may apply, depending on the nature and value of the works) 

Each Act may indicate how its requirements relate to development by the Crown. The REF and/or Crown DA should address these requirements. 

A Simpler Pathway for Crown Authorities

While the REF (development without consent) pathway provides a mechanism for the Crown to self-determine development, this process can often be more administratively complex, time-consuming, and resource-intensive than expected, particularly for developments with multiple impacts or community interface. 

The process also places the onus of compliance on the Crown to ensure the pathway is available to them and that the development complies with applicable development standards. Unlike a development application or a complying development pathway, no Council, Department of Planning team, or Certifier is undertaking an assessment of these matters. 

In some situations, the Crown may choose a more transparent or strategic alternative: submitting a Crown Development Application (Crown DA) under Part 4 of the EP&A Act. In addition to the unique aspects to the Crown DA process outlined above relating the limit of refusal, applying conditions and timing, the Crown DA process offers greater clarity, procedural transparency, and legal protection for all parties involved. For many of our Crown clients, particularly those managing schools, hospitals, and civic infrastructure, it’s simply the more pragmatic route. 

That said, there are exceptions. For minor works such as landscaping, routine upgrades, or internal alterations, the development without consent/REF process can be quicker and more proportionate, provided no significant environmental impacts are expected. 

It is also important to note that Crown development may be undertaken on land that is not “Crown land”. In these circumstances, the fact that the development is being undertaken by or on behalf of the Crown is enough to enable the use of the Crown development provisions. 

Regardless of the pathway, compliance with the Crown Land Management Act 2016 is essential when working on Crown land. That Act may restrict or regulate land use, regardless of the planning pathway, and must be considered in parallel with the EP&A Act.  

To put it simply: just because you’re the Crown doesn’t mean you’re exempt from planning responsibilities. You wouldn’t construct infrastructure through a national park without a proper assessment, and the same principle applies to Crown-funded developments in urban environments. These laws, while imperfect, provide a safety net that ensures government activities are held to a standard the public expects. 

If you’re unsure which approach is best for your project, or how to apply Crown DA or REF requirements, MBC Group can guide you through the legislative framework and practical delivery, ensuring compliance without compromising timelines.