Australia: More Changes to the Planning System

Property, Projects & Infrastructure eBulletin - 22 February 2011
Last Updated: 20 March 2011
Article by Alice Spizzo

Existing uses looking better

Existing use provisions in the Environmental Planning and Assessment Regulation 2000 (the Regulation) have been tightened, reviewed and relaxed over the last 5 years! The latest change to the Regulation brings additional flexibility.

Existing use rights can generally be quite beneficial. However, changing the use from an existing non conforming commercial or light industrial use to another commercial or light industrial use has been a major set-back for business because this was not permitted unless the change related to premises with a floor space of less than 1,000 sqm.

From 25 February 2011, changes to the Regulation will remove this restriction. As a result, the requirement that a development which has an existing light industrial or commercial use must have a floor space of less than 1,000 sqm to be changed to another industrial or commercial use, will be abolished.

Although the other existing limitations will continue to apply, relaxing unduly restrictive floor space controls will assist commercial activities, particularly retail activities.

Better planning appeals for homeowners

On 7 February 2011, the Planning Appeals Legislation Amendment Act 2010 (NSW) introduced a conciliation-arbitration scheme (the Scheme) to supplement the existing alternative dispute resolution mechanisms which are currently run by the Land and Environment Court (the Court).

The Scheme will apply to appeals relating to council decisions on detached single dwellings and dual occupancy applications (including subdivisions), or alterations or additions to such dwellings or dual occupancies.

The Scheme is mandatory and will be run by a Commissioner of the Court.

The Commissioner will use their discretion to decide the venue of the conciliation conference, (including an on-site hearing).

Two hearings

The Scheme will be likely to involve two hearings. The first hearing will be a directions hearing to organise a date for the final hearing; namely conciliation. If the conciliation is unsuccessful, the Commissioner will dispose of the conciliation proceedings and the hearing phase will commence in that same final hearing.

To ensure that binding agreements can be reached in the conciliation phase, council will be required to have someone attend who is authorised to settle the matter on the spot. If the conciliation is unsuccessful and arbitration takes place, there is no further right of appeal based on merit unless a party can identify that the Commissioner has made a legal error.

Benefits to homeowners

It's hoped the new laws will make it easier for homeowners to seek a review of councils' decisions so they can exercise their rights as quickly and as cheaply as possible.

Benefits of the scheme should be:

  1. cost-effective- conciliation-arbitration is cheaper than a full hearing in Court;
  2. quicker- reviews of council decisions will automatically be fast tracked to mandatory conciliation- arbitration at the first call over. Furthermore, a benchmark has been set so that 95% of appeals must be resolved within 3 months as opposed to 6 months for the usual benchmark for appeals; and
  3. fairer- homeowners and developers will be able to challenge council decisions (or lack of council decisions) more readily given the lower costs and speedier process.

Good news for coastal zone development

The Coastal Protection Act 1979 (NSW) (Coastal Protection Act) has been amended so that the concurrence of the NSW Minister for Climate Change and the Environment (Environment Minister) regarding development in coastal zones is not required in certain instances.

The concurrence of the Environment Minister is not required where the development:

  • requires development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act);
  • is exempt development under the EP&A Act; or
  • is carried out in accordance with a coastal management plan.

This change commenced on 1 January 2011.

A step forward for development on bushfire prone land

Changes to the EP&A Act will mean that the roles of councils and the Rural Fire Service will be made clearer in assessing development applications on bush fire prone land with the aim of reducing assessment times.

The EP&A Act currently requires that in order for development consent to be granted on bushfire prone land, the consent authority must be satisfied that the proposal complies with the Planning for Bushfire Protection Guidelines, or that the consent authority consulted with the Rural Fire Service.

Although it was anticipated that only non-compliant development applications or developments on high risk land would be dealt with by the Rural Fire Service, it has become evident that most councils have been referring development applications on bushfire prone land to the Rural Fire Service for assessment in the first instance.

The EP&A Act amendment

The amendment to the EP&A Act makes it clear that in order for development consent on bushfire prone land to be granted, the consent authority must be satisfied that the development complies with Planning for Bush Fire Protection.

Alternatively, the consent authority may be provided with a certificate stating that the development conforms to the relevant specifications and requirements. The certificate must be provided by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment.

If the consent authority forms the view that the development does not comply with Planning for Bush Fire Protection, the amendment allows the Commissioner of the NSW Rural Fire Service to be consulted concerning measures to be taken with respect to the development in order to protect persons, property and the environment from danger that may arise from a bush fire.

Local Government Act amendment

The Local Government Act 1993 (NSW) will also be amended so that councils will be exempt from liability for any advice, or anything done or omitted to be done, in good faith, in respect of bush fire prone land.

Transition period

There will be a 12 month transition period which will allow councils to continue to refer development applications to the Rural Fire Service in the first instance.

The changes commence on 25 February 2011.

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.

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