Australia: NSW planning system set for significant reform

Last Updated: 20 November 2017
Article by Brendan Bateman

On 15 November, the NSW Parliament passed what the NSW Planning Minister has described as the most extensive changes to the current NSW planning framework in almost 40 years.

The Environmental Planning and Assessment Amendment Bill 2017 (NSW) is yet to commence, however the broad amendments set out in the Bill will impact on all development applications and modifications in NSW.

We have highlighted some of the key changes to the Environmental Planning and Assessment Act 1979 (Planning Act) below.

Transitional Part 3A modification regime to be abolished

After 6 years of grandfathering key provisions of the Part 3A approvals regime, the NSW Government has now committed to State significant development or State significant infrastructure as the planning approval pathways for State significant projects in NSW.

While, at present, the existing transitional arrangements for Part 3A remain in place, the NSW Government has said that, following the making of regulations to accompany the Amendment Act, proponents with active projects will have a 2 month window to submit any section 75W modification applications. For projects where Secretary's Environmental Assessment Requirements have been issued for a section 75W modification application, the application will be determined under that provision if an environmental impact statement is lodged within 12 months.

This will be a significant change for major project operators who have been able to use the broad section 75W modification process as an important part of their project development.

Merit appeals operate as a stay on development consents

Currently, a developer can continue to act on a development consent even though it, or a third party in the case of designated development, has commenced a merit appeal. Under the new regime, a development consent ceases to have effect when it is the subject of a merit appeal. This does not apply to State significant development, but could still apply to third-party merit appeals in respect of designated development.

The change will mean that merit appeals, whether brought be developers or third parties, will delay the ability of developers to act on their consents.

The PAC becomes the IPC

The Planning Assessment Commission (PAC) will be renamed to the Independent Planning Commission (IPC). To ensure that the IPC maintains its focus on its primary function as an independent decision-maker, the IPC will not undertake the review function which the PAC previously performed. This removes the possibility of conducting a detailed assessment twice on the same proposal, and the NSW Government expects that this will save 70 to 160 days for the State significant determination process on some projects.

Stronger community engagement

Planning authorities will need to prepare a community participation plan that outlines how they will engage with the community in relation to proposals and development applications they are considering. The Planning Regulation will detail the content requirements and the process for developing these plans. Each plan must be prepared according to community participation principles under the updated Planning Act, including, in some situations, committing to going beyond the relevant mandatory minimum community participation requirements set out in the Planning Act.

This requirement will apply to local councils, NSW Government agencies that are planning authorities under the Planning Act, and the Secretary of the Department. However, a local council may be exempt from this requirement if it has development a community engagement strategy under the Local Government Act 1993 (NSW).

Decision makers will also be required to provide a statement of reasons for their decisions, in a way which is proportionate to the scale and impact of the decision. The statement of reasons should also identify considerations that are particularly important to the decision. Future modifications to a project must then subsequently take into account any relevant statement of reas

More strategic planning

Local councils will have to prepare and make a local strategic planning statement, which addresses the planning priorities for the local government area and how the priorities align with any strategic plans applying to the area. The statements must also explain the interaction with regional and/or district level priorities and how they are given effect at a local level.

Each statement will set a strategic context that has shaped the development of the applicable local environmental plan (LEP). The local strategic planning statement will not form part of the LEP, however it will provide strategic context and rationale for local planning controls. These statements are intended to inform rezoning decisions and guide development.

Broad step-in powers

The Secretary of the Department will have the power to step-in to prevent delays and resolve conflicts between State review or approval agencies where a local council is the consent authority. The Secretary may provide advice, concurrence or general terms of approval on behalf of another agency where:

  • such action has not be taken by the relevant agency within statutory timeframes; or
  • the advice, concurrence or general terms of approval from 2 or more agencies conflict.

When the Secretary exercises this power, he or she must have regard to the "State Assessment Requirements", a statutory policy to guide the Secretary's decisions.

New Planning Act objects

The assessment of development proposals will now have to take into consideration a number of new objects in the Planning Act, including:

  • to promote good design and amenity of the built environment;
  • to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage); and
  • to promote the proper construction and maintenance of buildings, including the protection of the health and safety of any occupants.

The Department says that this reform will modernise the objects of the Planning Act and does not change the intent or effect of the objects.

Climate change?

Some groups have expressed concern that the opportunity to introduce requirements of criteria to help manage climate change risk in the development process has been missed, since there is no reference to the issue in the Amendment Act. However, the requirements to consider sustainability principles remain, and these have served as a way of considering climate change risk.

More flexible legislation

The Amendment Act moves some of the Planning Act provisions into the Environmental Planning and Assessment Regulation 2000 (NSW). This will make it easier to revise them in future.

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.

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