Australia: Property, Environment & Planning

Government Bulletin summer edition – year in review

Planning and Environment: 2015 – a year in review

2015 has seen a number of significant developments in the area of planning and environmental law.

On the global stage, we saw the adoption of the historic Paris Agreement on 12 December 2015, negotiated during the 2015 United Nations Climate Change Conference. The Agreement aims to "strengthen the global response to the threat of climate change" including by "holding the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels"1. Formal ratification of the agreement will commence on 22 April 2016 2.

In NSW, perhaps some of the most significant announcements and reforms of 2015 were the establishment of the Greater Sydney Commission (GSC) and proposals for council amalgamations. In October 2015, the NSW Government released the Independent Pricing and Regulatory Tribunal's assessments of local government "Fit for the Future" proposals, finding that only 52 of  the 139 proposals (received from 144 councils) were found to be "fit" under the Fit for the Future criteria established by the Government in 2014. In December 2015, the NSW Government announced that the Minister for Local Government will refer detailed merger proposals to the Chief Executive of the Office of Local Government for examination and report under the Local Government Act 1993 in January 2016. It is anticipated that a process of public consultation will commence in early 2016 before a final report on the merger proposals is prepared. In addition, the Greater Sydney Commission Bill was passed by Parliament in November 2015 establishing the GSC as a new Government Authority that will have plan making and consent authority functions for the Greater Sydney Region. In early December 2015, cabinet approved the Greater Sydney Commissioners, including Lucy Turnbull as Chief Commissioner. The Greater Sydney Commission Act 2015 commences on 27 January 2016.

In terms of planning reform, 2015 also saw:

  • The commencement of amendments to the Environmental Planning and Assessment Act 1979 to include new penalties for breaches of planning law, a new offence regime and increased enforcement powers. 
  • Amendments to State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development coupled with an Apartment Design Guide which clarified minimum apartment size standards. The amendments with respect to minimum apartment sizes provided some welcome relief for the development industry after a Land and Environment Court decision generated significant concern and comment in this regard 3.
  • Important changes to State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) made in September 2015. Clause 12AA was removed from the Mining SEPP so that a more balanced approach to the assessment of mines could be undertaken. Clause 12AA of the Mining SEPP was introduced in November 2013 to require the consent authority to consider the relative significance of the resource and the economic benefits of developing the resource. This was to be the consent authority's principle consideration in assessing the development. Its removal was a response to community and stakeholder concern that the social and environmental impacts of a mining proposal were not being adequately considered 4.

What's ahead in 2016?

In addition to seeing the establishment of the GSC, the continued reform of the local government sector and infrastructure projects continuing in 2016, we can also expect to see further reform of NSW planning and environmental
laws.

New coastal management framework

In particular, on 13 November 2015, the NSW Government released a draft framework for coastal management for public comment, including a draft Coastal Management Bill which will replace the existing Coastal Protection Act 1979 and a new Coastal Management State Environmental Planning Policy (Coastal SEPP). The new legislative framework forms stage two of the NSW Government's coastal reform agenda to better equip coastal communities to respond effectively to existing and emerging coastal challenges and opportunities 5. Key elements of the proposed reform package include:

  • the replacement of a single homogenous coastal zone with four coastal management areas, mapped as part of the new Coastal SEPP ''
  • requirements for the preparation of Coastal Management Plans 
  • ''replacement of the NSW Coastal Panel with a new independent NSW Coastal Council to provide advice to the Minister for Planning on coastal planning and management issues.

Public consultation on the proposed coastal management framework will close on 29 February 2016.

Biodiversity conservation legislation

It was expected that 2015 would see the introduction of a new legislative regime for biodiversity conservation, comprising repeal of existing legislation including the Native Vegetation Act 2003 and Threatened Species Conservation
Act 1995 and introduction of a new integrated Biodiversity Conservation Act.

This was following the release of the NSW Independent Biodiversity Legislation Review Panel's final report on biodiversity and conservation legislation in 2014.

While it was anticipated that a draft Exposure Bill would be released in November 2015, its release was not to be seen in 2015. We therefore expect that draft legislation will be released for public comment during the course of 2016.

Footnotes

1 Article 2(1)(a).
2 Article 20(1).
3 Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55.
4 Department of Planning and Environment, 'Frequently Asked Questions – Mining SEPP Amendment', September 2015 [ Click here...]
5 Office of Environment and Heritage, 'Our Future on the Coast – Overview of the Coastal Management Reforms', November 2015 [ Click here...]

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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