Code assessment is meant to ensure 80% of development
applications are assessed as either complying or code assessment
development achieved within five years.
In addition to the exempt, complying and merit assessment
development tracks that we are familiar with under the existing
Environmental Planning and Assessment Act 1979 (EP&A
Act), the Planning Bill includes a new assessment track
called "code assessment".
The objective of including this new assessment track is to
enable the Government's target of having 80% of development
applications assessed as either complying or code assessment
development achieved within five years.
Code assessment developments will effectively be another
category of what would otherwise be merit assessment, but a more
standardised development that meets pre-approved performance
criteria. This is meant to take out of the merit assessment track
those developments that do or can be made to satisfy those
pre-approved performance criteria.
The code will prescribe the performance criteria of the specific
aspects of a development, and identify what it considers to be
acceptable solutions to satisfy those performance criteria. If a
development incorporates those acceptable solutions to achieve the
performance criteria, a council cannot refuse the development
application; nor can it impose conditions on the development other
than what will be prescribed as standard conditions. Code
assessment development must be assessed and determined within 25
There are other consequential amendments to facilitate code
assessment development. Councils cannot stop the clock in relation
to a code assessment development, nor will there be any opportunity
for public submissions in relation to such a development
application. The view taken by the Government is that if the
community has been consulted in relation to the identification of
what is "code assessment development", then there is no
further need for it to be consulted about any specific code
assessment development. It is sufficient that neighbours are
"informed" of the fact that am application for code
assessment development has been received by council.
Apart from the introduction of code assessment development, the
Government has also proposed to streamline the merit assessment
process to limit the number of opportunities for a council to stop
the clock and to require the council to notify an applicant to
amend the application to meet certain performance criteria.
Further, in assessing the merit of development applications, the
council is to have regard to the code assessment guidelines. Any
public consultation in relation to the development application
would be limited to those aspects of the development which do not
meet the performance criteria for code assessment development. To
the extent that a development application meets the performance
criteria in the code assessment guidelines, the council cannot
refuse approval in relation to that aspect of the development.
Approvals under other legislation
Development that requires approvals under other legislation will
continue in large part to continue to require referral to the other
agency. The Government however intends to undertake a review of the
need for referrals under other legislation, and has already
signalled in the White Paper that aquifer interference approvals
under the Water Management Act 2000, and approvals to clear native
vegetation under the Native Vegetation Act 2003, will no longer be
required for State significant development on the basis that these
issues would have been appropriately addressed during the strategic
planning phase in preparing regional and subregional plans.
In addition to undertaking a comprehensive review of current
referral requirements, a "one stop" referral shop would
be established within the Department of Planning and
Infrastructure. This office will effectively operate as a clearing
house for referrals and obtain general terms of approval so that
there is a single set of those terms. Relevant agencies will
continue to assess applications and provide advice but this will be
done via the Department.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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