Australia: Some useful "tweaks" proposed for the NSW planning system

NSW Planning Minister, Rob Stokes has proposed a multitude of amendments to the Environmental Planning and Assessment Act, 1979 (NSW) (EPA Act) and Regulation designed to simplify and improve the NSW planning system. Public comment is sought by 10 March 2017.

WHAT YOU NEED TO KNOW

  • Enhanced community participation including earlier consultation on major project proposals. The reasoning behind planning decisions will be communicated more clearly – as will details around how community views have been taken into account
  • Completing overhaul of strategic planning by ensuring State strategy is reflected in local strategic planning statements. There will be regular LEP reviews and standardised development control plans
  • "90% of housing approvals within 40 days" encouraging earlier consultation with neighbours. A discretionary step-in power for Secretary of the Department to resolve disputes between Government concurrence and advisory agencies has also been suggested. There will be investigation into how to the complying development regime can be enhanced as well as allowing deferred commencement CDCs
  • Tougher regulation including strengthened rules around modification of consents. The amendments would allow for the Court to invalidate unlawful complying development certificates (CDCs). Certifiers would be required to notify neighbours and the council with copies of both proposed and final CDCs, with copies of plans. Other amendments include limiting issue of CDCs to council Certifiers in some cases, allowing councils to impose compliance levies on complying development to fund enforcement action, permitting temporary stop work orders on complying development while councils investigate compliance and introducing enforceable undertakings for breaches of the EPA Act
  • "Halving assessment time for State significant development (SSD)" by clarifying conditions of consent and ensuring consistency with other licences and permits such as EPLs issued by the EPA. There would be "switching off" of older development consent conditions where more recently imposed conditions on licences and permits cover the same impact. Other areas include allowing the Minister to vary or revoke monitoring or auditing conditions and allowing for offsets for impacts other than just biodiversity
  • Discontinuing access to Part 3A and s75W modifications by transferring them to the SSD regime. A 2 month window to lodge s75W modification applications is proposed
  • Improving infrastructure provision by allowing SICs to be imposed on CDCs, expanding the Government agency concurrence regime in designated infrastructure corridors, reviewing guidelines on SICs, local infrastructure and s94A and tightening up the voluntary planning agreement regime
  • Improving accountability in the planning system by updating and regularising the Independent Hearing and Assessment Panel (IHAP) regime. The Minister would be allowed to direct a council to establish an IHAP and to have council development application determinations delegated to staff. Other amendments include increasing the CIV threshold from $20m to $30m for referral of development applications to a Regional Planning Panel, removing the review role of the Planning Assessment Commission (PAC) so it is solely an independent determining authority, proposing a two-stage public hearing process for PAC-determined development applications and allowing s82A Reviews for integrated development and some kinds of SSD
  • Simplified building regulation including housekeeping to consolidate relevant building-related regulation, allowing Certifiers to impose conditions on construction certificates and CDCs and ensuring Certifiers do not allow developers to stray significantly from development consents
  • Focus on design addition of a new object to the EPA Act promoting good design and establishment of design-led planning strategy by the Office of the Government Architect

HEADS UP

Of particular note for developers:

  • Short window to modify transitional Part 3A Concept Plan and Project Approvals
  • Tighter rules around s96 modification applications. No "backdoor" s96 modifications for completed unlawful works
  • SIC's and compliance levies attaching to CDCs
  • Potentially more Agency concurrences
  • Possible increase from $20m CIV to $30m for referral of development applications to Regional Planning Panels

A draft Bill of over 100 pages has been released for public consultation purposes.

We'll publish a commentary on the proposed amendments to the EPA Act and Regulations set out in the draft Bill shortly.

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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