Australia: EPA Acts: changes to the appeals process, implementation and enforcement

In the third and final article in our series on changes to the Environmental Planning & Assessment Act 1979 (EPA Act) under the the Environmental Planning & Assessment Amendment Act 2017 (Amending Act), to come into effect this Thursday, we cover changes to the appeals process and the new enforcement regime, including the overhaul of what was known as 121B orders.

Changes to the appeals process

The new Part 8 will consolidate the following provisions about appeals:

  • the circumstances in which consent is taken to have been refused for the purposes of appeal rights (or deemed refusal regime)
  • reviews of determinations or decisions made by consent authorities
  • appeals against decisions of consent authorities on development applications
  • powers of the Land and Environment Court on appeals, including costs orders—s 39(6A) of the Land and Environment Court Act 1979 (LEC Act) to be repealed
  • appeals against the failure or refusal of a council to issue construction, occupation, subdivision works or subdivision certificates
  • appeals against development control orders, and
  • other miscellaneous appeals such as those about security for development requirements, extensions of lapsing periods, revocations of development consents, compliance costs notices and building information certificates.

Reviews

Section 82A reviews will be now be dealt with under the new ss 8.2 to 8.5 of the EPA Act and the types of decisions that may be subject to review have expanded. Determinations on development applications and modification applications made by councils as well as local planning panels, Sydney district or regional planning panels, and any person acting as delegate of the Minister—other than the Independent Planning Commission (IPC) or the Planning Secretary—may now be reviewed. Decisions about integrated development may also be reviewed, but decisions about complying development certificates, designated development and Crown development still cannot be reviewed.

Development consent appeals

There will be no right of appeal against a decision of the IPC, which replaces the Planning Assessment Commission, that is made after a public hearing by the Commission.

Costs thrown away as a result of an amended application (previously 97B costs) will not be awarded in mandatory conciliation conferences under s 34AA of the LEC Act.

The council will be the Respondent in any appeal against a decision of a Sydney district or regional planning panel, a local planning panel or the Minister, but is subject to the control and direction of those panels or the Minister in the conduct of the appeal.

Relevant to appeal rights, the date from which a development consent has effect has been amended (previously s 83 of the EPA Act). Under the new Act:

  • a development consent has effect on and from the date it is registered on the NSW planning portal, and
  • a development consent for designated development has effect on and from the end of 28 days after the date it is registered on the NSW planning portal, unless the consent was granted following an IPC public hearing or the development is State significant development.

The time for appeal now starts to run after the decision appealed against is notified or registered on the NSW planning portal (or after the date of deemed refusal). The relevant time periods remain as six months for development applications and 28 days for objector appeals. The regulations will prescribe the relevant time limit for deemed refusals.

The regulations will make provision for the notification of the making or determination of applications for (or the issue or grant of) consents, approvals or certificates or other documents by means of the NSW planning portal. Until such time as registration on the NSW planning portal is available, if a provision requires registration on the portal, it is taken to require notification of the consent or approval to the applicant.

Certificate appeals

The time to commence an appeal against a refusal or the conditions of construction, occupation subdivision works or subdivision certificates has been reduced from 12 to six months. The regulations will provide for the deemed refusal period.

Implementation and enforcement (including the new orders regime)

Enforcement and compliance measures will be dealt with under a new Part 9 of the EPA Act.

Among the new measures, the Planning Secretary will have the power to enter into enforceable undertakings with persons who breach the EPA Act. These undertakings allow public authorities, including Councils, to negotiate the terms of an undertaking with the offender and recommend to the Planning Secretary that the undertaking be entered into. If the undertaking is not complied with, the Planning Secretary may apply to the Land & Environment Court for orders, including an order requiring the offender to pay any financial benefit reasonably attributable to the breach to the State. The enforceable undertaking provisions are expected to commence in late-2018.

Section 121B orders will be retained by the EPA Act but will be known as development control orders from 1 March 2018. Development control orders may be given by various enforcement authorities, including the Minister, the Planning Secretary, councils and consent authorities. The types of orders available are detailed in a new Sch 5 of the EPA Act. There are new types of orders, such as a remove advertising order, evacuate premises order and exclusion order. Councils will also have increased scope to order the completion of development, which has been physically commenced.

The maximum monetary penalties for Tier 1, Tier 2 and Tier 3 offences remain the same, however, the regulations may create offences that are punishable by a monetary penalty not exceeding $110,000. The carrying out of prohibited development, development contrary to development consent, development without consent or non-compliance with a development control order will be subject to a Tier 1 maximum monetary penalty. The amending provisions also indicate that certain types of offences under the EPA Act may include a period of imprisonment as a penalty in the future.

The new regulations (when made) may contain savings and transitional provisions about enforcement matters.

How these changes will affect you

Councils and other consent authorities will need to ensure they are familiar with the NSW planning portal and, when it is available for registration, ensure all relevant decisions are published on the portal (as this now determines when consents take effect and when appeal periods start to run).

Councils will also need to ensure that, from 1 March 2018, any enforcement action taken complies with the amending provisions. Any "template" orders will need to be adjusted to reflect the new development control orders, while delegations to Council staff will require amendment. Councils should consider negotiating an enforceable undertaking as an alternative form of enforcement action when those provisions commence later in the year.

Developers should be mindful that failure to comply with development consent is a criminal offence, which will soon be subject to a Tier 1 maximum penalty. The maximum penalty for this offence is $5 million for a corporation and $1 million for an individual. Daily penalties also apply to Tier 1 offences and the Amending Act indicates the penalty of imprisonment could be introduced in the future for certain types of offences.

Missed our other articles?

For a summary of the amendments, particularly changes to planning authorities, community participation, planning instruments and the development assessment process, read our first article in the series.

Our second article covers the changes to the certification process, including complying development certificates as well as building and subdivision certification, and to the infrastructure contributions and finance 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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