Australia: NSW Planning Reforms Spark Controversy

Last Updated: 27 June 2008
Article by Jodie Masson

The Environmental Planning and Assessment Bill 2008 has sparked controversy for the dramatic changes it intends to introduce with the stated aim of increasing the efficiency of the current planning system.

In November 2007, the NSW Department of Planning published a discussion paper and submissions on Improving the NSW Planning System. An exposure draft Environmental Planning and Assessment Amendment Bill 2008 was released in early April 2008 and the Minister for Planning, Frank Sartor, proposes that the Bill will be implemented by 1 July 2008.

One of the primary aims of the proposed reforms is to reduce significant delays in the assessment process of development applications by tailoring the development application assessment process to the size of the proposed development.

Development application assessment

The reforms aim to reduce the time frame in which local councils must assess development applications. Due in part to the limitation of the resources of local councils, currently the average assessment process takes more than 2 months.

The Bill intends to establish a number of independent decision making bodies to assist in the determination of the proposals to reduce the delays. These bodies include the Planning Assessment Commission, the Joint Regional Planning Panel, Independent Hearing and Assessment Panels and Planning Arbitrators.

A Planning Assessment Commission will be comprised of independent experts who will assess about 80 percent of the proposals currently determined by the Minister. This is intended to enable the Minister to focus on the assessment of long-term, strategic planning development applications and applications relating to critical infrastructure. A Joint Regional Planning Panel comprised of NSW Government and local council appointees will determine regionally significant proposals. Also, councils will be able to appoint Independent Hearing and Assessment Panels to advise on development applications and other planning matters.

Planning Arbitrators

Development applications for small scale residential renovations, other minor development for single dwellings, or with a value of less than $1 million, will continue to be determined by the Councils. However, appeals and reviews will be dealt with by independent Planning Arbitrators.

The relevant local council will be responsible for the initial determination of the application within a short time frame (yet to be disclosed). If the council does not abide by the time frame, upon the expiration of the time frame, applications will be submitted to a Planning Arbitrator who will be required to conduct a non-legal review within approximately 14 days.

Also, if the applicant wants a council decision to be reviewed, a Planning Arbitrator will be required to review the application before an appeal to the Land and Environment Court can be made. Applicants will be able to amend their application prior to the Planning Arbitrator reviewing the council's decision. If a Planning Arbitrator has not determined a review application within the period prescribed, the application is taken to be refused on the date on which the period expires.

One of the intentions of the reforms is to limit appeals to the courts. Accordingly, general appeals to the Land and Environment Court will need to be made within 3 months from the date on which the applicant receives notice of the determination of the Planning Arbitrator.

The reforms favour a more applicant-friendly assessment process which, it is intended, will reduce the frustrations of applicants in relation to the often lengthy delays. Only applicants will be able to appeal to the Land and Environment Court and councils will not be able to appeal a decision of a Planning Arbitrator. Generally, the reforms are a positive step to encourage efficient assessment of planning development in NSW. However, although the reforms are likely to reduce delays, this improvement may be offset by potential inconsistencies and mistakes that are risked as the applications are pushed through the new system to meet shortened time frames.

Complying and exempt development

An increase in complying and exempt development will also assist the assessment process to reduce the processing time for small scale residential development applications. Revised building codes will allow assessors to determine whether the application complies and is exempt from a more lengthy assessment process. An accredited certifier or the local council may issue a complying development certificate and this will allow the applicant to proceed with the development.

Consistent with the pursuit of reducing unnecessary backlogs of development applications, councils or accredited certifiers may issue a complying development certificate where a proposed complying development does not comply with the development standards but where the non-compliance is of a minor nature and not likely to cause any substantial net adverse impact on owners of adjoining land or the land on which the development is carried out. Adherence to strict building codes will benefit the assessment process by enabling complying and exempt development to overcome insubstantial, minor non-compliance issues.

Lapsing of development consents

Currently development consents will not lapse as long as work has physically commenced within the time frame specified in the consent. Physical commencement of work is a low threshold test which may be satisfied by the placing of pegs and other survey works on the land.

Under the reforms however, even if work has been physically commenced, if the work is not substantially commenced within 2 years after the date from which the consent operates, the consent will lapse. The regulations will provide for when work is taken not to have been substantially commenced.

In order to preserve development consents, developers will have to be aware of this requirement that substantial works will have to be commenced within the time frame of the development consent.

Compulsory acquisition of land

One of the more controversial aspects of the reforms is that the Minister, or a designated authority acting under the Minister's direction, may acquire land for the purpose of, or in connection with, an urban renewal proposal or an urban land release if it is believed that the acquisition will result in net public benefit.

The absence of definitions of 'urban renewal proposal', 'urban land release' and 'net public benefit' in the Bill means that the Minister's power to compulsorily acquire land is extremely broad. Minister Frank Sartor has stated that this law will be used to ensure developments for the greater public benefit cannot be blocked and it is likely that this power would be used to address issues regarding the availability of housing.

Under the current law the Minister is not able to resell land which has been compulsorily acquired or transfer it to another person for profit. But the reforms expressly allow that the Minister will be able to on-sell the acquired land to developers for profit.

Some of these proposed reforms regarding the compulsory acquisition of land have justifiably been seen as concerning in various sectors of the community although no doubt these reforms will remove some of the frustrations experienced by developers where just one person could stifle a development which could benefit the community.


It is important to be aware of the multi-faceted, impending amendments to the Environmental Planning and Assessment Act 1979 which promise to be the most significant overhaul of the NSW planning system in about 30 years. Some of main proposed reforms are certainly a positive step to reduce delays for applicant property owners wishing to undertake small scale developments on their own property. Once the Bill becomes law, property developers should be particularly mindful of the changes to lapsing development consents and the proposed new limitation period of 3 months rather than 12 to appeal a development application decision.

The reforms are not yet law but will be if the Bill is passed in June 2008 as envisaged by Mr Sartor.

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.

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

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

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)
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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