Returning to 'normal': Three key updates for NSW
With stay at home orders and isolation rules relaxed and NSW emerging from the COVID-19 malaise, the various CBDs of Sydney and Greater Sydney are showing signs of a return to 'normal' city life. At the same time, various government departments are also adapting to a 'new' normal as the NSW Government works through machinery of government (MOG) changes affecting various agencies in the wake of the Cabinet reshuffle at the end of 2021.
Delegation and MOG changes
Amidst the current changes, it is good for agencies to keep an eye on their various governance structures, including delegation and authorisation frameworks. Acting without a valid delegation is an 'Achilles heel' that can bring down administrative decisions. Towards the end of last year, a case in the Land and Environment Court in South East Forest Rescue Inc v Allied Natural Wood Exports Pty Ltd and Anor [2021] NSWLEC 89 showed the direct consequences on the validity of an administrative decision where the person purporting to make a decision did not have delegation to do so. In this time of change, for those who have been 'mogged' already and those who are awaiting their 'MOG' to occur, it is a good time to pull out instruments of delegation to see if they need to change for new structures, new roles, and new functions.
New environmental planning and assessment regulation
On the theme of changes, with infrastructure, development and housing standing as perennial themes in the post-COVID economy, a robust and efficient planning system is of supreme importance to the State. In this regard, March saw the commencement of the Environmental Planning and Assessment Regulation 2021 (NSW) (2021 Regulation). A big cultural shift is at play – at least for lawyers – with provisions in the 2021 Regulations now being referred to as 'sections' instead of 'clauses'. This change will undoubtedly move through the statute books as regulations and instruments are refreshed and renamed.
Importantly, for any government agency which has duties of environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979, the term 'Review of Environmental Factors' (REF) is now formalised as a statutory term, with the 2021 Regulation including new provisions allowing the Planning Secretary to prescribe guidelines for the form of a REF. Without prescribed guidelines, the environmental factors to be considered in a REF have been expanded under the 2021 Regulation to include "any other relevant environmental factors" in addition to the factors carried over from the 2000 Regulation (section 171(2)(r) of the 2021 Regulation).
More substantively, there are new 'approved form' requirements for development applications, modification applications and complying development certificates which can be said to be aimed at providing more information 'on the papers' for greater transparency and efficiency of decision making. Keeping pace with online lodgement systems, the assessment period for development and modification applications will now commence on the day the application is lodged (with payment) on the NSW planning portal rather than two days after the date of lodgement. Further, the 2021 Regulation clarifies that a consent authority can reject a modification application for the same reasons that a consent authority can reject a development application, and that provision for the withdrawal of development applications also apply to modification applications.
Consolidation of State Environmental Planning Policies
Additionally, March saw the rationalisation of various State Environmental Planning Policies under the 'umbrella' State Environmental Planning Policies (SEPPs) to rationalise the number of SEPPs on the statute books. The new consolidated SEPPs relate to 'Planning Systems', 'Biodiversity and Conservation', 'Resilience and Hazards', 'Transport and Infrastructure', 'Industry and Employment', 'Resources and Energy', 'Primary Production' and three SEPPs relating to the Eastern Harbour City, Central River City and Western Parkland City. Within those SEPPs are 'familiar friends', the former SEPPs that stood alone before the consolidation.
With the consolidation, government and private developers should be careful to read the SEPPs afresh, given the duplication of certain terms and the inclusion of multiple dictionaries in some SEPPs, amongst other things, so that those 'familiar friends' do not become "faux amis" – false friends – which might trip us up during the task of statutory interpretation.
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.
