Australia: EPA Act: changes to the certification process and infrastructure contributions

Last Updated: 21 February 2018
Article by Naomi Simmons and Alan McKelvey

The Environmental Planning & Assessment Amendment Act 2017 (NSW) (Amending Act) will commence on 1 March 2018, introducing a range of significant amendments to the Environmental Planning & Assessment Act 1979 (EPA Act). We cover the most important changes for councils and developers in a three-part series.

Our first article, New planning authorities and changes to the development assessment process, summarised the new terminology as well as changes to planning authorities and instruments, the development assessment process and the new mandatory community participation requirements.

This second article focuses on the amendments to the certification process, including complying development certificates (CDC) as well as building and subdivision certification, and the infrastructure contributions and finance regime.

Changes to the certification process

CDCs

The provisions about CDCs will remain in Part 4 of the new EPA Act. The changes include:

  • there may be types of development (to be specified in the regulations) for which only a council may issue a CDC
  • deferred commencement conditions may now be imposed on CDCs, and
  • s 101 will be amended, giving the court the power to declare a CDC invalid if proceedings are brought within three months after the certificate is issued (rather than within three months of public notice) and if the certificate authorises the carrying out of development for which the court determines that a CDC is not authorised to be issued.

Building and subdivision certification

Part 6 of the new EPA Act will contain a new regime for the previous "Part 4A certificates". The changes include:

  • provisions for building and subdivision certification (including definitions) will be consolidated into a new Part 6, which will replace the previous Parts 4A and 4C and other sections about certificates such as 81A and 149A–149G of the existing Act
  • construction certificates and subdivision works certificates will not be required for work that complies with a CDC
  • new types of certificates, including subdivision works certificates (required for any physical activity authorised to be carried out in connection with a subdivision under the conditions of a development consent) and building information certificates (which identify any matters under the EPA Act or Local Government Act 1993 that would entitle the Council to issue an order or take proceedings on)
  • regulations may make provisions for conditions of certificates under Part 6
  • occupation certificates cannot be issued unless a building manual has been provided to the owner of the building (the regulations will provide detail about the form and content of the manual)
  • principal certifying authorities must issue formal directions to builders for any non-compliances (the regulations will provide the types of non-compliances), and
  • building and subdivision certificates issued under Part 6 may be declared invalid by the Land and Environment Court if proceedings are brought within three months after the certificate is issued and the plans and specification/standards of building work or subdivision work specified in the certificate are not "consistent with" the development consent (previously, a certificate was required to be "not inconsistent with" the plans or works).

A certificate issued under the old Part 4A is taken to be a corresponding certificate issued under the new Part 6 of the EPA Act. The provisions of Part 4A will continue to apply to an application for a certificate that has not been determined when Part 4A is repealed. Any certificate issued will, however, be taken to be a corresponding certificate issued under Part 6.

Planning certificates remain in the new Part 10 of the Act.

Infrastructure contributions and finance

Development contributions and affordable housing provisions will be transferred from Part 4 of the Act to Part 7, which will be headed "Infrastructure contributions and finance". There will be no changes other than renumbering to the existing provisions on funds, charges and fees, and loans in Part 7.

Under the new EPA Act, the contributions scheme will be extended for complying development so that:

  • planning agreements may be made in connection with applications for a complying development certificate, as well as development applications, and
  • the Minister can require an accredited certifier to impose a condition on a complying development certificate requiring the payment of special infrastructure contributions.

The Minister's powers to direct another planning authority on planning agreement procedures will also be extended to enable the Minister to determine the extent of public benefit to be made by a developer under a planning agreement. This provision will give the Minister power to intervene in negotiations between a Council and developer about the public benefits to be provided under a planning agreement.

The following changes will be made to the special (or State) infrastructure contributions scheme:

  • When determining the level of special infrastructure contributions, the Minister may take into account infrastructure provided or required to be provided under a planning agreement, to ensure fair apportionment of the cost of the provision of infrastructure.
  • The Minister may determine that special infrastructure contributions can be provided in the form of works or the supply of land.
  • The Minister's determination about special infrastructure contributions can include provisions about the timing of making the contribution.
  • The Minister may direct a consent authority to impose a development consent condition requiring payment of special infrastructure contributions, or a condition requiring the developer to obtain a determination by the Secretary about whether such a contribution is required.
  • Directions about special infrastructure contributions will be published on the NSW planning portal or in the gazette.
  • Where the consent authority is the Minister, a condition requiring payment of special infrastructure contributions will be taken to have been imposed. Under the existing scheme, the Minister may impose the condition.
  • The issuing of a certificate under Part 6 of the Act or a strata certificate under the Strata Schemes Development Act 2015 can be restricted by a condition requiring payment of special infrastructure contributions. Although the issue of construction, subdivision and occupation certificates can be restricted by planning agreements and development consent conditions, these schemes have never previously authorised a consent authority to restrict the issuing of strata plans or certificates.

Next issue

Our final update will focus on changes to the appeal process as well as enforcement, including the new orders regime.

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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