A new class of appeals in the NSW Land and Environment Court and further responses to COVID-19

Summary of the proposed changes as part of the Planning Reform Action Plan and changes made in response to COVID-19.
Australia Environment
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A new class of appeals in the NSW Land and Environment Court for the first time in 12 years is among the latest round of reforms announced by the NSW Government in its Planning Reform Action Plan (Plan). The Plan was announced in addition to other changes which form part of the NSW Government's continued response to COVID-19. This article provides a summary of the proposed changes as part of the Plan, and also outlines changes to Infrastructure Contribution Directions, the establishment of the NSW Planning Delivery Unit and the proposed changes to NSW Planning Panels.

These changes have been made as part of the NSW Government's Planning System Acceleration Program, which was introduced in April 2020 and formed the foundational basis of the NSW Government's response to the pandemic. These additional changes have been introduced to support NSW's immediate and long-term economic recovery during the pandemic. Benefits to businesses include streamlined processes, some deferred payments of local infrastructure contributions and levies, and assistance for projects that are experiencing unreasonable delays.

Further details on these changes are set out below.


NSW Planning Reform Action Plan

On 15 July 2020, the NSW Government announced the proposed implementation of its $83 million Plan. The objective of the Plan is to build on the momentum created by the NSW Government's efforts to use the planning system to:

  • Keep the economy moving during the pandemic
  • Cut unnecessary duplication of processes
  • Boost resources in the State's assessment team

Changes proposed as part of the Plan include:

  • Establishing a new class of appeals for rezonings in the Land and Environment Court (LEC). Although the legislation to support this new class of appeals is not yet available, the opportunity for proponents to progress rezonings which can otherwise be delayed for years is likely to support more efficient outcomes for these proposals. Two new commissioners will also be appointed to the LEC.
  • A Faster Assessment Program aimed at reducing decision making times, including for rezoning decisions (by over 190 days), and both regionally significant DA decisions and major project decisions by 20 days.
  • Enhancing the ePlanning platform to ensure all councils adopt an online DA system by 1 July 2021.
  • Introducing complying development reforms to support emerging industries and to fast track government projects.

We will provide updates on the Plan and associated legislation as they become available.

Infrastructure Contribution Directions to defer payments

On 25 June 2020, the Minister issued the Local Infrastructure Contributions – Timing of Payments Direction 2020 (Timing Direction). The Timing Direction temporarily requires consent authorities to defer the payment of local infrastructure contributions and levies until at least the issuing of the first occupation certificate (OC), instead of up front before construction commences.

A similar direction has been prepared for the Western Sydney Growth Areas and Gosford City Centre special infrastructure contribution (SIC) plans (SIC Direction), where payment is deferred until at least the issuing of the first OC. However, the SIC Direction does not apply to existing consents.

Developments subject to these directions are limited to large scale developments requiring an OC, and include only those projects with a construction cost of $10 million or more. The directions do not apply to development involving the subdivision of land, whether or not it also involves construction, or to complying development. Development consents granted before the directions took effect and which meet the above criteria, are taken to be modified to allow local contributions and levies to be paid before the issuing of the OC.

The directions apply until 25 September 2020, which marks the end of the COVID-19 prescribed period.

Planning Delivery Unit to address unreasonable delays

On 1 July 2020, the NSW Government established the Planning Delivery Unit (PDU), whose objective is to assist in progressing projects that may be "stuck" in the planning system.

At the PDU's discretion, the PDU may intervene in projects that are, amongst other things, under assessment or in post consent approval phase, and are experiencing unreasonable delays (with assessment times exceeding 120 days). These projects may include:

  • Local development with a capital investment value greater than $5 million and with one or more integrated development requirements (excluding dwelling houses and dual occupancies), or a regional project that delivers jobs and local economic benefits.
  • Regionally significant development (see Schedule 7 of the State and Regional Development SEPP).
  • Priority projects such as complex or strategic planning proposals or precincts, including projects nominated by councils.
  • Development carried out by or on behalf of the Crown.
  • Projects that create a public benefit, such as the delivery of housing for vulnerable communities, significant community facilities and state or regional level infrastructure, or projects that have strategic merit.

If necessary, the PDU will operationalise the use of the Planning Secretary's legislative step-in powers. The Planning Secretary has powers to step in and seek to prevent delays to applications and to resolve inter-agency disputes.

Changes to Planning Panels to streamline processes

Commencing on 1 August 2020, the NSW Government is introducing changes to the operation of local, state and regional planning panels (Panels). The objective of these changes is to streamline the Panels' processes in order to optimise efficiency, output and performance.

Key changes include:

  • Panels are to make determinations within two weeks of being provided an assessment report.
  • Panels will only deal with modification applications which relate to conflicts of interest, contentious development or a departure from development standards. Council staff will be delegated to deal with minor modifications.
  • Panel chairs may require Councils to report a DA to the panel for determination within 4 weeks if the application has experienced unreasonable delays in excess of 180 days.
  • Panels are to allow applicants to attend briefings to present on complex, confidential or commercially sensitive material.

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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