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.

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