Australia: Property, Environment & Planning in NSW: Planning and environment: evolution rather than revolution

Last Updated: 8 February 2017
Article by Breellen Warry and Peter Holt

Most Read Contributor in Australia, July 2017

The year began with the establishment of the Greater Sydney Commission and the appointment of the various District Commissioners. It ended with the public release of draft district plans for each of the six Sydney districts.

In March the Minister for Planning announced a series of legislative updates, amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act) to give effect to the provisions of the Planning Bill 2013 which were widely supported by stakeholder groups.

The aim had been to make an exposure draft of the Bill available for public comment in the middle of the year a view to introducing the bill into the Parliament in the second half of the year.

Perhaps given the volume of applications, or perhaps given the demands of the Government痴 wider legislative reform agenda, the proposed amendments to the EP&A Act did not materialise in 2016.

That is not to say that 2016 was a quiet year for legislative change. Against the background of forced council amalgamations and in a political year dominated by the greyhound racing ban there were a number of significant legislative changes in the planning and environment space.

The most significant legislative changes were around biodiversity conservation. During the year the Government passed the Biodiversity Conservation Act 2016 and the Local Land Services Amendment Act 2016. Together those two acts replace long standing pieces of environmental legislation, including the Threatened Species Conservation Act 1995 and substantially overhaul biodiversity laws in NSW (see here).

In addition:

  • The Government also introduced wide ranging changes to the processes around planning and development in the coastal zone.
  • In perhaps the best news in 2016, with the passage of the Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Act 2016, 2017 looks like the year that New South Wales will finally get a container deposit scheme (see here).
  • In response to the acknowledged failures in the compulsory acquisition processes the Government legislated to make a number of changes designed to make the compulsory acquisition processes fairer, transparent and customer friendly for land owners (see here). Those changed are yet to be commenced.

In addition, while the draft bill to give effect to the legislative updates to the EP&A Act did not materialise in 2016, the Government did lay out a roadmap for a series of reforms designed to improve building certification in New South Wales as part of its response to the Lambert Review (see here). Then in October it legislated to improve the flow of information between the main participants in the process, the Building Professionals Board, NSW Fair Trading, the councils and the certifiers.

Furthermore, during the course of 2016:

  • Troubleshooting around the tricky issue of value capture, and wider concerns about the potential misuse of Voluntary Planning Agreements (VPAs), saw the Planning Minister release for public consultation a number of changes to the requirements around VPAs (see here).
  • The Planning Minister moved to improve some of the processes around environmental impact assessment for State significant development and State significant infrastructure (see here).
  • A number of outdated and superseded State environmental planning policies (SEPPs) were repealed as part of a SEPP review program.
  • The Government also exhibited the proposed Coastal Management State Environmental Planning Policy which is to repeal and replace a number of SEPPs including State Environmental Planning Policy No 14佑oastal Wetlands, State Environmental Planning Policy No 26有ittoral Rainforests and State Environmental Planning Policy No 71佑oastal Protection as part of the coastal management reforms.
  • Finally, the Government released an explanation of intended effects setting out a number of changes to State Environmental Planning Policy No 44 - Koala Habitat Protection (see here).

What does 2017 hold?

In all likelihood, the Government will make the proposed Coastal Management SEPP and commence the Coastal Management Act 2016 early in the new year.

The changes to the compulsory acquisition processes are also likely to commence first up.

The Government has also said that it will exhibit the Biodiversity Assessment Method and the draft regulation to support the biodiversity conservation reforms in the first part of 2017.

The Greater Sydney Commission said that the draft district plans will be exhibited until March 2017 with the aim of making the final district plans before the end of 2017.

The start date for the State痴 container deposit scheme is set down for July 2017. With the establishment of a container deposit scheme, 2017 is the year to begin discussions about banning disposable plastic bags.

Hopefully the work of the SEPP review program will continue so that superseded SEPPs are reviewed and repealed to help simplify the system and make it more user friendly.

Perhaps the legislative updates to the EP&A Act will be released for public consultation and it would be good if 2017 were the year when the Government finally gets around to reviewing and remaking the Environmental Planning and Assessment Regulation 2000. Although if the Sydney housing boom continues, any talk of a grander planning reform narrative will have to wait for another year.

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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