Australia: The amendments to the EPA Act have commenced—what now?

The Environmental Planning and Assessment Amendment Act 2017 (NSW) (Amendment Act) commenced on 1 March 2018, introducing significant changes to the Environmental Planning and Assessment Act 1979 (EPA Act). Over the past few weeks, we have published a series of articles outlining the most important changes to the EPA Act—you can view our most recent article here. This article provides further information about the details in the Environmental Planning and Assessment (Saving, Transitional and Other Provisions) Regulation 2018 (Savings Regulation) and answers some frequently asked questions (FAQs) about the new regime.

Transitional provisions
Part 2 of the Savings Regulation includes the following transitional arrangements:

• References to the previous EPA Act provisions—A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to a provision of the EPA Act that has been renumbered or relocated by the Amendment Act is taken to be a reference to the renumbered or relocated provision. Anything done or omitted to be done under any provision of the EPA Act before it was renumbered or relocated is taken to have been done or omitted under the provision as renumbered or relocated.
• Planning portal—Until the NSW planning portal provides a facility for the registration of development consents and other approvals on the portal (see, for example, sections 4.20 and 8.10 of the EPA Act), notice of the consent or approval is taken to be given when notice is given to the applicant.
• Local environmental plans—If a Council was authorised to exercise the delegation made by the Minister on 14 October 2012 to make an LEP before 1 March 2018, that is taken to be an authorisation to make the plan under section 3.34 of the EPA Act. Current planning proposals that do not have a gateway determination can be issued a gateway determination under section 3.34(2)(g) of the EPA Act.
• Part 4A certificates—Certificates issued and in force before the repeal of Part 4A are taken to be corresponding certificates issued under the new Part 6 of the EPA Act. The repealed Part 4A continues to apply to an application for a certificate pending on the repeal of Part 4A, but the certificate (when issued) is taken to be the corresponding certificate under Part 6. Note the previous Part 4A and sections 81A(1)-(6) and 86 continue to apply until 1 September 2018.
• Part 3A projects—An approved project or concept plan cannot be modified under the previous section 75W of the EPA Act after 1 March 2018, unless the request to modify was lodged before 1 March (but only if determined before 1 September 2018). A concept plan may continue to be modified under section 75W after 1 March, but only if the Minister is satisfied that the proposed modification is to correct a minor error or is of minimal environmental impact, or the project as modified is substantially the same as the project to which the concept plan currently relates.

When will the new obligations of the Act commence?

The amendments to the EPA Act have all commenced, however, the Savings Regulation provides different commencement dates for some of the new obligations. The relevant dates are set out below:

FAQs

What if a Notice of Intention (NOI) to issue a s 121B order was issued before 1 March but the order was not yet issued?

As references in any document (which would include a NOI) to the provisions of the EPA Act that have been renumbered or relocated are taken to be references to the corresponding renumbered provision, it may be open to the Council to issue the formal order under section 9.34. This may, however, depend on the type of the order. Councils must ensure any order issued under section 9.34 is the same as the type of order specified in the NOI (comparing the previous section 121B to the new Part 1 of Schedule 5). If there is doubt, to reduce the risk of the order being challenged, Councils should seek advice or consider reissuing the NOI under clause 8 of Schedule 5 of the EPA Act.

When is a subdivision works certificate needed?

You do not need a subdivision works certificate to carry out subdivision works in accordance with a development consent granted before 1 March 2018.

When do consent authorities need to start providing a statement of reasons?

Consent authorities will need to publicly notify both a statement of reasons and how community views were taken into account for all determinations (that is, for both refusals and grants of consent) of development applications (including modifications) and decisions to issue an approval or carry out development under Division 5.1 made from 1 July 2018.

Should delegations be updated?

While the renumbered sections of the amended EPA Act are taken to be references to the corresponding previous provision, councils should update their delegations to the General Manager (and from the General Manager to Council staff) to include the new section references, the new types of development control orders and certificates as well as any new functions under the EPA Act.

What are the appeal rights for DAs pending or determined before 1 March?

The Savings Regulation does not include any provisions relating to pending DAs. An appeal would, therefore, be commenced under the new section 8.7 and 8.10 of the EPA Act. Under section 8.10 of the EPA Act, an appeal can be made within six months after the date the decision appealed against is notified or registered on the NSW planning portal. As the planning portal does not yet provide a facility for registration, the time to appeal starts to run from when notice is given to the applicant. The deemed refusal periods prescribed by clause 113 of the Environmental Planning and Assessment Regulation 2000 have not changed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.