Australia: Proposed NSW planning reforms promise simpler, faster planning

Last Updated: 19 April 2017
Article by Jacinta Studdert and Kristyn Glanville

Introduction

The NSW Department of Planning and Environment (DPE) has announced proposed amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act), affecting the strategic planning and approvals processes. The amendments are intended in part to expedite the grant of development consents, but are broad-ranging and will have commercial implications for various forms of development.

The relevant documents have been on public exhibition since 10 January 2017. Recently DPE extended the public consultation period so that submissions can now be made until 31 March 2017 (instead of 10 March 2017). The proposed amendments are expected to be introduced into State Parliament soon after public consultation. It is not clear whether the recent changes in the NSW Government ministry will result in any changes to the content and/or timing of the proposed reforms.

What are the changes for how planning decisions will be made?

  • New local strategic planning statements – Local strategic planning statements will be prepared by councils and are intended to provide greater clarity around the strategic context and priorities for the local government area and region. These will not form part of a local environmental plan (LEP) , but will be taken into consideration when rezoning or assessing planning proposals. This reform should encourage councils to focus on strategic and regional planning in decision-making. This is pertinent in light of the recently implemented reforms concerning the Greater Sydney Commission, where there is greater emphasis on strategic planning at a district/regional level and it clarifies how the goals in the regional and district plans can filter through to the local level.
  • LEPs – Councils will need to update their LEPs every five years to ensure that they continue to align with regional and district plans, demographic changes, local infrastructure, and other planning changes. This should prompt councils to ensure LEPs continue to meet the changing needs of local stakeholders, and reflect the strategic and regional plans for the area. This is likely to be a mechanism for implementing the recently exhibited draft District Plans at a local level in the future.
  • Development control plans– There will be more standardisation and consistency of development control plans (DCPs) between councils through the introduction of a standard format DCP with model provisions for inclusion. At present, there is no consistency across local government areas.
  • Statement of reasons – Consent authorities are being encouraged to provide greater transparency by providing reasons for their decisions, with the statement of reasons being proportionate to the scale and impact of the decision. This should assist in understanding the decisions of consent authorities and also assist those considering challenging decisions.
  • Consistency with existing development consent – When considering a modification, consent authorities will be required to consider the reasons for the original decision. This is intended to ensure that proper consideration is given to the original reasons why particular conditions were imposed.
  • Planning agreements – The Minister for Planning will have clarified powers to issue directions concerning the methodology for preparing planning agreements.
  • Local Planning Panels – Current independent hearing assessment panel provisions will be replaced with updated provisions on local planning panels (LPPs). The Minister may direct a council to establish a LPP to determine development assessments.
  • Building design – A new object will be included promoting good design in the built environment.
  • Regionally significant development – Regionally significant development will now be determined by the Sydney district or regional planning panel, however the threshold for regionally significant development will be raised. The proposed new thresholds for regionally significant development include:
    • development with a capital investment value (CIV) over $30 million;
    • private infrastructure and community facilities greater than $5 million;
    • certain developments with a CIV between $10 million and $30 million undetermined within 120 days and at the applicant's request; and
    • certain development where council's development assessment is unsatisfactory.

This will have the effect of increasing the number of assessments being performed, and approvals being granted, by councils.

Will the proposed reforms make the process faster?

  • Overriding agency disagreements – The Secretary of the Department of Planning and Environment will have reserve discretionary powers to step in and give advice, concurrence or approval on behalf of another agency, where that agency has not provided the advice, concurrence, of approval within statutory timeframes or different agencies have provided conflicting advices. The Secretary can exercise these powers where council is the consent authority, potentially avoiding unnecessary delays. There is no explicit mechanism by which a developer could trigger these step in powers, and in what circumstances the Secretary will be inclined to exercise these powers.
  • Simplification of complying development pathway – The complying development pathway will be simplified for low impact proposals. This is significant in light of concurrent reforms to expand the number and types of complying development, for example, the current plans to create medium density housing types of complying development.1 Complying development certificates can be issued with deferred commencement provisions in certain circumstances, to make it more consistent with other development pathways.
  • More consultation for certain Part 5 development – Public authorities relying on assessments under Part 5 will now be required to obtain concurrence or notification of public authorities to activities under Part 5 within future infrastructure corridors.

Will reforms increase the cost for proponents to obtain development approvals?

  • More streamlined processes – The proposed changes are intended to make the process faster, which may potentially reduce the costs of obtaining approvals.
  • Potentially increased contributions for complying development – Complying developments will be captured by special infrastructure levies or be the subject of planning agreements. This is significant in light of proposals for including medium density housing as a form of complying development.
  • Financial securities – Conditions of consent will require financial securities to fund the decommissioning or rehabilitation of sites. This is similar to the power to require financial assurances under the Protection of the Environment Operations Act 1997 (POEO Act ) and reflects the increasing focus by the Government to require the private sector to provide for any contingent environmental liabilities.
  • Appeals against decisions – The scope of internal reviews will be expanded to include decisions about integrated development and state significant development (SSD). This may obviate the need to rely upon appeals to the Court.

Will there be any changes on compliance issues?

  • Limits on when developers will be able to regularise non-compliance – This is a significant change. Developers will no longer be able to regularise non-compliance through a modification of an existing development consent, as authorities and courts will be limited in being able to approve a modification in relation to works already completed. This is intended to strengthen deterrence of unauthorised works, so that unauthorised works which are not minor departures from the original development consent may be subject to enforcement action, such as orders requiring demolition, requiring a new building certificate, or issuing of penalty notices.
  • Councils will have new investigation powers – Councils will be able to issue temporary 7-day stop works orders to investigate non-compliance with complying development certificates.
  • Additional powers to create and enforce undertakings – Councils will be able to obtain orders from the Court where breaches have occurred in relation to undertakings requiring compliance, payment of money and/or compensation, and remediation of damage.

Will there be changes to community consultation?

  • Increased community participation – Councils will need to prepare community participation plans for upcoming proposals and development applications.
  • Eight new principles for community participation – The new principles include: requiring proponents to consult with community members affected by proposed major development prior to lodging any development application, giving the community opportunities to participate in strategic planning.
  • Increased community consultation – The new regulations are intended to incentivise consultation prior to lodgement of a development application.

Are there any other changes intended to streamline the planning process?

  • Lapsing of SSD conditions which are obsolete or duplicated in another approval – There are proposals to make new and existing conditions of development consents for SSD to "lapse" or be "modernised". These include:
    • Some conditions of consent may provide that the condition will lapse on the issue of an approval under other legislation with substantially similar conditions. This is intended to avoid duplication in regulatory oversight of activities. This is relevant to, for example, proponents who hold an environmental protection licence (EPL) under the POEO Act, as conflicting or obsolete conditions under a planning approval are often an issue for also complying with the EPL for the premises. While this process of making approvals more consistent is welcomed, it is noted that this amendment does not address any inconsistency or overlap between conditions imposed under approvals granted under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and development consents granted under EP&A Act.
    • The Minister may also vary or revoke monitoring or environmental audit requirements in certain existing planning approvals, where those planning approvals require monitoring or auditing to be to the Minister's satisfaction. This is intended to provide greater flexibility to ensure that conditions in older consents remain relevant, contemporary and enforceable. There is no current particular mechanism for a proponent to request such an update. The proposed reform may apply where an approval contains obsolete conditions either inconsistent with modern monitoring or auditing standards, or the proponent's other regulatory obligations such as in EPLs.
  • Part 3A – Transitional provisions relating to former Part 3A projects relating to modifications will be discontinued. Existing approvals under Part 3A or the transitional provisions will be transitioned to either SSD or State significant infrastructure (SSI) pathways (save for projects where construction is completed or underway). There will be a "two-month window" for proponents to apply for a modification under former s75W, after which, any modifications must be applied for under SSD or SSI pathways. The significance of this proposed change is that the power to modify SSD/SSI projects is narrower than the power to modify Part 3A projects under former s75W of the EP&A Act. The ongoing effect of approved Part 3A concept plans will be preserved.
  • Building certification –Key provisions relating to building regulation and certification should become clearer to understand, by being consolidated into a single part of the EP&A Act.

Next step

The proposed amendments are expected to be introduced into Parliament shortly, following public consultation. If implemented, they will mean substantial changes to obtaining approval, and will also have implications for a number of existing approvals.

Footnote

1 Legislative updates - Have your say on new planning legislation, Department for Planning & Environment

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
Jacinta Studdert
 
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”

Mondaq Advice Centre (MACs)
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.