Australia: NSW Planning, Environment & Government Update

Last Updated: 7 December 2007
Article by Isabella Ferguson and Emma Hillier

Contents

  • Walker v Minister for Planning [2007] NSWLEC 741 ('Walker decision') – Implications Coastal And Flood Liable Land And Major Project Development

    The Land and Environment Court delivered a landmark decision last week that has major implications for future applications in coastal and flood liable areas. The consequences of the decision demonstrate the Court's consideration of the significance of "global" environmental factors such greenhouse emissions and climate change on project assessments.

  • Biggest Reforms To Planning Regime Since 1979?

    In a landmark document released on 27 November 2007, the NSW Minister for Planning unveiled a set of preposed reforms amounting to the most comprehensive overhaul of the planning regime since the inception of the Environmental Planning and Assessment Act (the Act) in 1979. The reforms aim to reduce the number of development applications for minor and routine developments and reduce delays during processing and assessment of applications. These changes are likely to be welcomed by those wishing to undertake minor and routine works. Other significant changes are to be made to Land and Environment Court appeals, the physical commencement of consents and the certification process.

Walker v Minister for Planning [2007] NSWLEC 741 ('Walker decision') – Implications Coastal And Flood Liable Land And Major Project Development

The Land and Environment Court delivered a landmark decision last week that has major implications for future applications in coastal and flood liable areas. The consequences of the decision demonstrate the Court's consideration of the significance of "global" environmental factors such greenhouse emissions and climate change on project assessments.

In this case, Biscoe J held that a decision by the Minister to approve a concept plan (lodged under Part 3 A of the Environmental Planning & Assessment Act 1979 (Act)) in relation to a project to subdivide land at Sandon Point and construct a retirement development, was void and of no effect. The Court found that the Minister failed to consider whether flood risks associated with climate change were relevant and may impact the land at Sandon Point, being flood constrained land that is located on the coastal plain.

In making the decision, Biscoe J comprehensively outlines the relevancy of Environmentally Sustainable Development (ESD) principles and the scientific data supporting the existence of pending climate change. Biscoe J notably refers to climate change as presenting "a risk to the survival of the human race and other species" and is consequently "a deadly serious issue." Climate change was found to be a relevant issue to the public interest and therefore one which the Minister was obligated to consider in the context of the case.

The Walker decision builds on the recent decisions of Pain J in Grey v the Minister for Planning (known as the Anvill Coal Mine decision) concerning the relevancy of ESD to the assessment of developments under Part 3A, and Preston CJ in Telstra Corporation Limited v Hornsby Shire Council which comprehensively applied ESD principles to the decision of whether electromagnetic radiation generated from a proposed telecommunication tower could harm the health and safety of residents.

The Walker decision has implications specifically for applications to develop or expand developments in coastal and flood liable areas. Consequently, in relation to these applications, it is recommended that proponents and councils make an assumption that there is the potential for greater flooding or inundation than is presently the case (ie due to climate change), and that proponents should consider whether any mitigation measures can be designed to alleviate any future flooding impacts.

The decision also has wider implications for Part 3A projects as it continues a trend of the Court to not only require the application of ESD principles to assessments concerning these projects but to actively rely on these principles to broaden the necessity for assessments to factor in "global" environmental issues such as greenhouse emissions and climate change. As a consequence assessments by both proponents and the Minister must become increasingly environmentally aware, on a global scale.

Where there is a failure to consider these matters, the Court has demonstrated that it is not hesitant to declare the approval void.

Biggest Reforms To Planning Regime Since 1979?

In a landmark document released on 27 November 2007, the NSW Minister for Planning unveiled a set of preposed reforms amounting to the most comprehensive overhaul of the planning regime since the inception of the Environmental Planning and Assessment Act (the Act) in 1979. The reforms aim to reduce the number of development applications for minor and routine developments and reduce delays during processing and assessment of applications. These changes are likely to be welcomed by those wishing to undertake minor and routine works. Other significant changes are to be made to Land and Environment Court appeals, the physical commencement of consents and the certification process.

The Key Proposed Changes

The often slow and complex development assessment regime is proposed to be replaced by the following key initiatives:

  • the introduction of a Planning Assessment Commission to assess the majority of ministerial-level determinations apart from critical infrastructure and strategic major projects which will still be assessed by the Minister
  • the establishment of Joint Regional Planning Panels to determine projects of regional significance
  • the introduction of planning arbitrators for small applications worth less than $1 million dollars. It is proposed that appeals in the first instance could be dealt with by a planning arbitrator appointed from an accredited register
  • an increase in the scope of exempt and complying developments to make it easier to renovate and build new homes
  • improved local environmental plan processes to speed up rezonings
  • a new ePlanning system aimed at reducing delays and improving customer service at councils.

Changes To Appeals To The Land And Environment Court

Amendments To Applications

According to the reform papers the amendment of development applications during the appeal process is set to be significantly curtailed so as to reduce the number of amendments that can be made. The paper reveals two ways in which these changes may be achieved. The first option is to require developers to go back to the Council or the Minister for a new assessment where the changes are either significant or substantial. The second option is for the Court to grant leave to the amendments in the ordinary way but on the basis that the Court would register a refusal against the original application and award costs to the Council/Minister. Again this would only take place where the amendments are either significant or substantial.

Compulsory Mediation/Conciliation

The reforms also include amendments to the Land and Environment Court Act so as to require compulsory mediation or compulsory conciliation conferences for all cases. This reform echoes the significant changes made to the Land and Environment Court Practice Direction earlier this year.

Changes To Lapsing Of Development Consents

Recent court decisions, including the Court of Appeal decision of Hunter Development Brokerage v Cessnock City Council [2005] NSWCA 169 held that the placing of pegs and other survey works were sufficient to constitute physical commencement of a consent in some instances. The provisions of the Act relating to lapsing of consents are proposed to be amended so as to prevent developers from sustaining developments consents by undertaking only minor works. These changes will have a significant impact upon a developer's ability to preserve development consents and will likely require timely commencement of significant works.

Exhibition And Amendment Of Planning Agreements

Under current arrangements where a planning agreement is amended in response to a submission received during the public notice period the agreement must be re-notified before the parties enter into the agreement. This is proposed to be changed so that re-notification is not required in every instance.

Requirements For A Statement Of Environmental Effects

The Court of Appeal in Cranky Rock Road Action Group Inc and Anor v Cowra Shire Council and Ors [2006] NSWCCA 339 found that it was not a mandatory requirement that a development application be accompanied by a statement of environmental effects (SEE). It is proposed to amend the Act to return to the situation where a SEE must be a requirement for a valid development application.

Reforms To Certification

In acknowledgment of the importance of the role of private certifiers to the proposed reforms, a number of changes are set to tighten the certification system, as follows:

  • place limits on the number of construction certificates or complying development certificates that can be issued to any one client by an accredited certifier
  • strengthen the role of the Building Professionals Board to allocate a certifier for large or complex projects
  • expand the accreditation system to include companies rather than individuals alone. Councils would also be required to obtain corporate accreditation
  • greater clarification of the role of Councils in enforcing development consents.

Conclusion

It is clear that significant changes lie ahead for the planning regime in New South Wales. While many of these changes will be welcomed by "the mums and dads developers" seeking to undertake minor works and routine residential development, other changes present significant issues for developers and for applicants in the Land and Environment Court. Moreover, many of the changes will drastically reduce the role and power of councils in the assessment of development applications, and are therefore likely to be opposed by local government and public interest organisations. We will monitor these changes and welcome any enquiries.

Sydney

Anthony Whealy

t (02) 9931 4867

e awhealy@nsw.gadens.com.au

Isabella Ferguson

t (02) 9931 4929

e iferguson@nsw.gadens.com.au

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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