Australia: Evolution, not revolution: reforms proposed for the NSW planning system

Last Updated: 19 January 2017
Article by Andrew Poulos

Proposed changes to the planning system will impact developments in NSW. Anyone with a current or future development project or modification should consider seeking advice on the potential implications for their development and whether or not to lodge a public submission before 10 March 2017.

On 9 January 2017, the NSW Government announced broad changes to the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act). The Minister for Planning, Rob Stokes, outlined that the planning reforms seek to improve housing supply, target delays in processing development applications and provide consistent assessment pathways for major projects.

The extent of reform under the Environmental Planning and Assessment Amendment Bill 2017 (NSW) is not as comprehensive as the NSW Government's previous proposal, the now lapsed Planning Bill 2013 (NSW). However, the wide-ranging changes proposed for the Planning Act will impact on development applications and modifications in NSW.

Community participation and consultation

  • Community participation plans: local councils, relevant NSW Government agencies and the Secretary of the Department of Environment and Planning will have to prepare a community participation plan that reflects the community participation principles to be set out in the Planning Act (unless this can be met through the community engagement strategy it has prepared under the Local Government Act 1993 (NSW)).
  • Early consultation: provisions of the Planning Act will be refined to clarify that regulations may be made to encourage or require certain activities to be performed before lodgement of a development or modification application. Providing incentives for early consultation will be explored by the Department. State significant development (SSD) proponents will have to demonstrate community consultation prior to lodgement as part of an environmental impact statement.

Local planning

  • Local strategic planning: to fill the gap in the strategic planning hierarchy, local councils will be required to development local strategic planning statements that provide strategic context and reasoning for local planning controls and take a 20 year horizon consistent with regional and district plans. These statements are intended to inform rezoning decisions and guide development.
  • Independent Hearing and Assessment Panels (IHAPs): provisions in the Planning Act for IHAPs will be updated and bring existing and future IHAPs created by local councils under one framework. The Minister for Planning will be given the power to direct a local council to appoint a IHAP where it is reasonable to improve the quality and timing of decisions or manage conflicts of interest or corruption.
  • Local environmental plan (LEP) reviews: local councils will be required to review LEPs every five years for consistency with strategic plans, State environmental planning policies, local demographics and other matters.
  • Development control plans (DCPs) consistency: currently there are over 400 DCPs across NSW which vary significantly in structure and content. DCPs will now be required to follow a standard format that will be developed in consultation with local councils and model DCP provisions will be developed for use on an optional basis.
  • Voluntary planning agreements (VPAs): the Bill will refine and strengthen the Minister for Planning's power to make a direction in respect of the methodology to be used in a VPA. Further improvements to the policy framework for VPAs are currently on public exhibition until 27 January 2017, including a draft ministerial direction, revised practice note and planning circular.

Development assessment

  • Termination of transitional Part 3A arrangements: to prevent the ongoing use of section 75W to modify former Part 3A projects, all existing approvals under Part 3A or the transitional provisions will be moved to the SSD or State significant infrastructure (SSI) pathways (except for development that is completed or under construction). Modifications under the former Part 3A modification provisions will only be allowed for up to two months following passage of the Bill. After this time, modification applications will be assessed against the development as at the time it became SSD or SSI. The section 96 modification power is narrower and requires development to be "substantially the same" as the development originally approved. The ongoing effect of approval Part 3A concept plans will be preserved.
  • Independent Planning Commission (IPC): the Planning Assessment Commission will be renamed the IPC. The IPC will solely be a determining authority and will no longer provide an advice or a review function in development proposals. The Department has indicated that this will potentially reduce the State significant determination timeframe by 70 to 160 days. The current and proposed determination process is shown in the figure below and the changes will require public hearings to be held over two stages. The first hearing will be held at the end of the public exhibition period and the second hearing will be held once the Department's draft assessment has been prepared.
  • Source: Department of Planning and Environment, Summary of Proposals, January 2017.

  • Deterring unauthorised works: planning authorities, including the court, will be prevented from approving modification applications for works that have already been completed (other than in limited circumstances, e.g. minor error, misdescription or miscalculation). This means that enforcement action (eg. a demolition order), or a requirement to obtain a new building certificate, may be imposed in respect of any unauthorised works.
  • Statement of reasons: decision-makers will need to give a statement of reasons for any decision that is proportionate to the scale and impact of the decision. The statement will highlight specific considerations of particular importance to the decision and must be considered by consent authorities when considering any future modification applications.
  • Complying development: the Department has identified anomalies between the complying development and development application pathways. Examples of such differences include that a certifier cannot issue a complying development certificate if the development is on an unregistered lot and a special infrastructure contribution cannot be levied for complying development. The Bill seeks to rectify such differences between the two pathways.
  • Step-in power: Secretary of the Department will be provided with the discretionary power to give advice, concurrence or general terms of approval on behalf of another agency in certain circumstances.
  • Transferrable conditions: sometimes conditions are duplicated across more than one approval creating parallel regimes that regulate the same impacts (e.g. mining and energy projects currently have multiple agencies regulating their dust, noise, blasting, biodiversity, and other impacts). To address this, transferrable conditions of consent may cease to have effect when they are adequately addressed in conditions subsequently imposed under other regulatory authorisations (eg. environmental protection licences or mining lease). Responsibility for enforcing these conditions will then lie with the NSW Government agency regulating the licence, lease or other approval rather than the original consent authority.
  • Consistency with development approvals: following recent case law, the changes will establish a clear requirement for construction certificates to be consistent with development consents and permit the Court to invalidate a construction certificate due to inconsistency.
  • Concurrence for Part 5 projects: the current requirement for environmental planning instruments to require concurrence or notification of public authorities will be extended to Part 5 projects within future infrastructure corridors to avoid inappropriate development in such areas.
  • New design object: the objects of the Planning Act will be updated to include "promote good design in the build environment" to allow for the consideration and balancing of design against other objects of the Planning Act.
  • Enforceable undertakings: to improve compliance outcomes where fines or prosecutions may be ineffective, the Department and local councils will be provided with the power to enter into enforceable undertakings with holders of a development consent. This will require holders to remedy any harm that has occurred and improve activities to avoid further non-compliance.

Next steps

The public consultation period for the Bill closes on 10 March 2017. Anyone with a current or future development project or modification should consider whether to seek advice on the potential impacts of the proposed reforms and whether or not to lodge a submission.

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. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Australia
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Australia
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions