Australia: Planning and environment year in review: A system in transition in NSW

Last Updated: 17 January 2019
Article by Breellen Warry, Peter Holt and Clara Edwards

Most Read Contributor in Australia, January 2019

2018 marked the commencement of significant changes to the Environmental Planning and Assessment Act 1979 (EP&A Act). While the changes came into force from 1 March 2018, in practice a number of the key reforms did not immediately take effect and many will be implemented in stages over the coming years, including during the course of 2019. 

Planning

Notably, 2018 saw the commencement of the following reforms:

  • the restructure and renumbering of the EP&A Act which has been a challenge for many of us to come to terms with!
  • the introduction of mandatory local planning panels for Wollongong and councils within the Greater Sydney region from 1 March 2018 
  • the requirement for planning authorities to publish a statement of reasons for decisions from 1 July 2018.

Clause 4.6 written requests

Turning to the Courts, in late 2018, we saw a number of Land and Environment Court decisions relating to clause 4.6 of the Standard Instrument (Local Environmental Plan) (which replaces the previous SEPP 1 objections to development standards). These decisions have highlighted the importance of adhering to the requirements of clause 4.6 for consent authorities and developers alike. For more information, see here. As a result, we expect to see heightened scrutiny of clause 4.6 requests by both the Court and consent authorities over the course of 2019. 

Sydney Planning Summit 

The Sydney Planning, Environment & Sustainability team had the benefit of attending the Sydney Planning Summit in 2018, with special counsel Peter Holt delivering a presentation on the EP&A Act reforms. Key highlights of the Summit included: 

  • thinking about the future of Sydney as a "smart city" and the challenges of future population growth
  • considering the impacts of climate change on liveability in the city, including planning for climate change risks in design and infrastructure implementation 
  • planning, design and implementation of the Metropolitan Sydney plan as a part of planning for resilience around issues such as housing affordability and demand for health services 
  • technology and its impact on planning including how to think in smarter ways about waste management using technology (particularly relevant in the context of our article on increased waste offence penalties).

A snapshot of these issues clearly indicates there are both long and short term pressures on planning and development in Sydney that will continue to face planners, lawyers and government authorities alike. We will continue to monitor each of these areas and provide updates as new developments arise.

Environment 

As we predicted in our 2017 Year in Review, the effects of the biodiversity conservation reforms were felt in 2018, especially the impact of extensive savings and transitional provisions. Other than a small number of local government areas (LGAs) still being Interim Designated Areas1, the requirements of the Biodiversity Conservation Act 2016 (BC Act) now apply to the majority of LGAs, including the new Biodiversity Offset Scheme (BOS). 

2018 also saw the tightening of a number of environmental offence provisions, including:

What's ahead in 2019? 

With an election in March 2019, it remains to be seen whether we can expect further changes to the NSW planning system, with opposition leader Michael Daley MP pledging to "fix the planning system in NSW" should he be elected premier.2

Further roll out of planning reforms 

Notwithstanding this, during the course of 2019, we will see a further roll out of the EP&A Act reforms, including:

  • a review of the Environmental Planning and Assessment Regulation 2000, following the exhibition of the issues paper Review of the Environmental Planning and Assessment Regulation 2000  in 2017 and possible release of a draft regulation for comment 
  • the introduction of community participation plans, required to be prepared by all NSW planning authorities by 1 December 2019. A draft community participation plan was released by the Department of Planning and Environment for consultation in October 2018
  • the exhibition of draft local strategic planning statements (LSPS) by councils as required under the EP&A Act (Greater Sydney councils are required to exhibit their draft LSPS by 1 July 2019 with the final version in place by 1 December 2019. Regional councils must have their LSPS in place by 1 July 2020)
  • the commencement of the new building and subdivision provisions of the EP&A Act on 1 September 2019, signalling the end of interim occupation certificates
  • the commencement of the Low Rise Medium Density Housing Code in deferred local government areas on 1 July 2019 (or 1 July 2020 in the City of Ryde). The Code allows one and two storey dual occupancies, manor houses and terraces to be carried out as complying development. For further information, see our previous article on the code.

We have also yet to see the commencement of number of new State Environmental Planning Policies (SEPPs) as part of the NSW Government's review program for SEPPs. This includes:

We may also see the implementation of further reforms, particularly in relation to local planning panels, following the recommendations of the Kaldas report released in December 2018, entitled Review of Governance in the NSW Planning System. Nick Kaldas APM was appointed in July 2018 to conduct an independent review of the governance of decision-making within the NSW planning system. Some of the key recommendations of the report include:

  • that consideration be given to extending mandatory planning panels to the Central Coast and Newcastle LGAs
  • that the Department of Planning and Environment establish an Ethics Unit, similar to the United Nations Ethics Divisions, which reports directly to the Secretary of the Department. 

We also anticipate further reforms arising out of the recent Opal Tower incident, including possible additional changes to building and certification provisions. 

Environmental 

On the environmental front, developers and consent authorities alike will need to grapple with the requirements of the BC Act and the impact of the BOS on development proposals and decision making. 

Unsurprisingly, waste also continues to be high on the EPA's agenda with continued compliance activity and the proposed introduction during the course of 2019 of the:

We will continue to monitor these developments. 

Footnotes

1 Camden, City of Campbelltown, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly.
See https://www.environment.nsw.gov.au/biodiversity/transitional.htm for further information

2 https://www.smh.com.au/politics/nsw/michael-daley-elected-nsw-labor-party-leader-over-chris-minns-20181110-p50f8i.html

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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