Australia: Planning and environment in NSW – 2017 in review

Last Updated: 18 January 2018
Article by Breellen Warry and Peter Holt

Most Read Contributor in Australia, August 2018

Planning reform in NSW requires patience and timing. In 2017 the NSW Government demonstrated both its infinite patience and impeccable timing.

The highlights of the year have been the commencement of the Biodiversity Conservation Act 2016 (BC Act) in August and the passing of the Environmental Planning and Assessment Amendment Act 2017 (EP&A Amendment Act) in early November.

These two significant pieces of legislative reform will likely set the tone for a busy (and transitional arrangements filled) 2018.

Commencement of biodiversity and native vegetation reforms

The suite of legislation reforms which included the Biodiversity Conservation Act 2016, Biodiversity Conservation Regulation 2017 and Biodiversity Conservation (Savings and Transitional) Regulation 2017 commenced on 25 August 2017 (and has implications for application of provisions of the National Parks & Wildlife Act 1974 and the Environmental Planning and Assessment Act 1979 (EP&A Act)).

The BC Act repealed the Threatened Species Conservation Act 1995 and Nature Conservation Trust Act 2001. In addition, the Native Vegetation Act 2003 has now been repealed, and native vegetation is now managed under the Local Land Services Act 2013 and the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

At its heart, the BC Act establishes the framework whereby landholders can establish stewardship sites to create biodiversity credits. These credits will be available to the market to offset the impacts of development or clearing. In the alternative, developers can make payments into the Biodiversity Conservation Fund to discharge an offset obligation. You can read more about the scheme here.

Despite the commencement of the BC Act however, the new assessment and offsetting scheme has yet to take effect in connection with the majority of planning applications, given the savings and transitional provisions in place. For example, the old threatened species assessment regime will, generally speaking (and subject to some limitations), continue to apply to:

  • any development applications lodged under Part 4 prior to 25 February 2018; and
  • any applications for State significant development or State significant infrastructure made by 25 April 2019.i

In addition, the new scheme will not generally apply to any development applications lodged under Part 4 prior to 25 August 2018 within the local government areas of Camden, City of Campbelltown, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly.ii

Reform of the Environmental Planning and Assessment Act 1979

Touted as the best of the left over bits of the Planning Bill which was defeated in 2013, the Government passed the Environmental Planning and Assessment Amendment Act 2017 in November 2017.

The former Planning Minster Rob Stokes sought to characterise the provisions in the EP&A Amendment Act as part of a process of evolution (the natural extension of the principles embedded in the original 1979 Act) rather than revolution (the approach inherent in the Planning Bill 2013 that would have seen the repeal of the EP&A Act).

As part of its revised approach the Government dropped the push towards 80 per cent of development applications being assessed as code assessable development and sought to focus on the reforms that would improve the overall operation of the EP&A Act.

In truth, the goals of the EP&A Amendment Act were somewhat more lofty that that. The new provisions (which are yet to commence) would introduce new objects seeking to promote good design and amenity of the built environment, the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), and to promote the proper construction and maintenance of buildings.

On the basis that more community consultation is always a good thing in the planning space, planning authorities will now be required to prepare a community participation plan explaining how it will consult and engage with the community in plan-making and development decisions. Decision-makers will also be under an obligation to give reasons for their decisions when granting consent to development applications.

Strategic planning at the local level will also get a shot in the arm. Councils will now be required to prepare local strategic planning statements which will establish a 20-year vision for land use priorities and the broader aspirations of the council for its local government area. These changes will hopefully see the emphasis shift from a focus on plan making, towards a process of more regular monitoring and review. Local environmental plans and State environmental planning policies will now be required to be reviewed every five years.

And finally, after nearly seven years, the former Part 3A (Major Infrastructure and Other Project) provisions will be repealed in their entirety. Existing Part 3A approvals are to be transitioned to either State Significant Development or State Significant Infrastructure and, in future, proponents will have to modify their approvals under somewhat narrower modification powers (in the case of State significant development). Read more here.

The Government has foreshadowed that it intends to start some of the provisions in early 2018, but initiatives like the introduction of community participation plans and local strategic planning statement will require further consultation before they can be introduced.

Changes to staged development and the introduction of mandatory local planning panels

Staged development applications

While the broader legislative reforms were being subject to widespread public consultation there were two matters that warranted more urgent attention.

The first related to staged development. In June 2017, the Court of Appeal struck down a development consent for State significant development at Walsh Bay. The application was said to be a staged development application within the meaning of section 83B of the EP&A Act comprising a concept and a single stage. The Court of Appeal found that the definition of a staged development must by necessity involve two or more subsequent stages.

In response to concerns about the implication of that decision the Government introduced validating legislation in August to rename staged development applications as "concept development applications" and to allow a concept approval and a single subsequent detailed application. While the legislation did not save the Walsh Bay development it did validate other staged development applications involving a single stage.

The legislation also includes a new provision which seeks to make it clear that the impacts of carrying out the development may be considered when the concept proposal is being assessed but must be considered where approval to carry out works is sought (the other issue in the appeal). Read more here.

Mandatory local planning panels

The other piece of deft troubleshooting involved requiring councils in metropolitan Sydney and Wollongong to implement local planning panels. The proposal to establish panels originally formed part of the wider reform proposals in the EP&A Amendment Act which were consulted on between May 2016 and the end of January 2017.

In August 2017, the Government felt that it needed to move swiftly as part of moves to improve the probity and integrity of the planning system, in part due to the widely reported antics of the former Auburn deputy mayor.

As a result of those changes, councils within the Sydney area and Wollongong will be required to have independent local planning panels in place by 1 March 2018. The panels will comprise three independent experts and a community member. Their role will be largely to assess development applications with a capital investment value of more than $5 million or where the council has an interest in the applications. Councillors, property developers and real estate agents are ineligible to be panel members. The Government has also said that it will revise upwards the threshold for regionally significant development from $20 million to $30 million so that a larger proportion of development applications will be determined at the local level.

Review of State environmental planning policies

The Department of Planning and Environment has had for the last two years a process of reviewing State environmental planning policies (SEPPs). Over the course of 2017, we saw some significant reforms or proposed reforms to a number of SEPPs. These have included:

The Education SEPP

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP) commenced on 1 September 2017. The Education SEPP transferred the educational establishment provisions in State Environmental Planning Policy (Infrastructure) 2007 that related to schools and TAFEs into a stand-alone SEPP. The Education SEPP also made provision for universities and early education and care facilities.

The other key changes under the Education SEPP were that registered non-government schools can now carry out certain development without consent in accordance with an approved code of practice, an expansion of what can be carried out as either exempt or complying development and a provision that enables development consent to be granted for the purpose of a school that is State significant development even though it would contravene a development standards imposed under and environmental planning instrument.

The changes related to child-care facilities make those facilities permitted with development consent across a greater range of zones, impose certain non-discretionary development standards relating to location, the amount of indoor and outdoor space, and site areas and dimensions and require those applications to consider the Child Care Planning Guideline (Guideline). The Guideline is designed to ensure centre-based child care facilities are assessed against a consistent criteria across NSW and that the building will comply with the National Quality Framework that regulates early education and care services at the Commonwealth level when it is built. Certain provisions in Council's development control plans no longer apply to the assessment of an application for a centre-based care facility.

The Environment SEPP

An explanation of intended effect was released for the proposed new State Environmental Planning Policy (Environment) (Environment SEPP) which is proposed to replace the State Environmental Planning Policy No. 19—Bushland in Urban Areas, State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, State Environmental Planning Policy No. 50—Canal Estate Development, Greater Metropolitan Regional Environmental Plan No. 2—Georges River Catchment, Sydney Regional Environmental Plan No. 20—Hawkesbury-Nepean River (No.2-1997), Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and the Willandra Lakes Regional Environmental Plan No. 1—World Heritage Property.

Changes to SEPP 64 Advertising and Signage

As of 29 November 2017, advertising on trailers on roads, road shoulders, nature strips and land owned by public authorities such as RMS has been banned under changes to State Environmental Planning Policy No 64—Advertising and Signage. Where an advertising trailer is proposed to be parked on private land which is visible from a road, footpath, and other public land, development consent under Part 4 of the EP&A Act is required. From early 2018, councils will be empowered to issue fines of up to $3,000.00 for business, or $1,500.00 for individuals who continue to use the trailers for advertising in this way.

Changes to SEPP 70 Affordable Housing

State Environmental Planning Policy No 70—Affordable Housing (Revised Schemes) (SEPP 70) is a mechanism that allows specified councils to prepare an affordable housing contribution scheme for certain precincts, areas or developments associated with an upzoning within their local government area. Schemes currently operate in the City of Sydney at Green Square, Ultimo-Pyrmont and the Southern Employment Lands. An explanation of intended effect for SEPP 70 was released for public comment in December which proposes the inclusion of five Councils: Randwick City, Inner West, Northern Beaches, City of Ryde and the City of Canada Bay within the framework of the SEPP. The explanation will be on exhibition until the end of January 2018.

Looking ahead to 2018: a period of transition, further consolidation and implementation

Following the commencement of the BC Act and the passage and the EP&A Amendment Act it is fair to say that 2018 will likely be characterised as a period of transition, further consolidation and implementation.

We know that local planning panels are set to commence on 1 March 2018.

The Government has also said it will consult further on community participation plans and local strategic planning statement before those provisions are commenced.

2018 will also be the year where we see the practical implementation of the BC Act and associated reforms and how that scheme will play out as developers are required to apply the scheme as part of certain proposals.

Hopefully the process of regularly reviewing SEPPs will continue throughout 2018. We are still waiting for the commencement of State Environmental Planning Policy (Coastal Management) 2016 which was the subject of public consultation from late 2016 until January 2017. We have also yet to see the outcomes of the proposed amendments to State Environmental Planning Policy No 44—Koala Habitat Protection which were consulted on in November last year. Hopefully both will commence in 2018 with plenty of notice being given to stakeholders to enable them to accommodate the changes.

We also know that the process of reviewing the Environmental Planning and Assessment Regulation 2000 has begun. It may be that we have a draft Regulation to look forward to sometime late in 2018.

Finally, the Government has said that it will look to resolve the longstanding tensions associated with having Aboriginal cultural heritage dealt with under the National Parks and Wildlife Act 1974. Public consultation is currently underway and workshops are scheduled for early in the new year. This year will see the 10 year anniversary of the Apology to Australia's Indigenous Peoples. There is no better time to move to give Aboriginal cultural heritage the respect it deserves.

Footnotes

iSee clauses 27 and 28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017.

ii See clauses 27 and 28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017.

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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