NSW Planning, Environment & Government Update, November 2006

• Changes to major projects and the lapsing of deferred commencement consents
• Relief to developers of bushfire prone land
• New powers of Land and Environment Court to resolve tree disputes

The Environmental Planning Legislation Amendment Bill 2006 (the Bill) was introduced into the NSW Parliament on 24 October 2006. The Bill makes several amendments to the Environmental Planning and Assessment Act 1979 (the Act).

The Act currently provides that the Minister cannot approve a project (other than a critical infrastructure project) that would, but for Part 3A, be wholly prohibited by an environmental planning instrument (EPI).

The Bill would remove this restriction. Section (75J (3)) will instead provide only that the Minister may (but is not required to) consider the provisions of an EPI and that the Regulations may prevent approval of certain classes of projects (other than critical infrastructure projects) that are prohibited by an EPI. Otherwise, wholly prohibited development can be approved.

The Act currently provides that the Minister may not approve a project until the environmental assessment requirements have been complied with. The amendments remove the express requirement for compliance with environmental assessment requirements and simply allow the Minister to approve a project upon receipt of the Director-General's report on the project.

The Bill provides an express power for the Minister to require compliance with a statement of commitments by incorporating its terms as a condition of consent or into a planning agreement.

The Bill changes the current legal position relating to the lapsing of deferred commencement consents.

The Bill provides that a deferred commencement consent will lapse if the applicant fails to satisfy all deferred commencement conditions within five years, or any shorter time specified by the consent authority.

In Australand Holdings v Hornsby Shire Council the Court found that a deferred commencement consent would not lapse where there had been a non-fulfilment of a deferred commencement condition within a stipulated time. As a deferred commencement consent does not become operative until the deferred commencement condition is satisfied, this effectively meant that non-operative deferred commencement consents could never lapse.

The transitional provisions provide that current deferred commencement consents will lapse if the condition is not satisfied within five years from the date of the consent, or two years after the commencement of the new provisions (whichever is later).

Developers with deferred commencement consents will no longer be able to rely on the knowledge that they hold a valid consent that may be activated and acted upon at any time in the future. Developers will need to be aware of these new time limits, ensure that deferred commencement conditions are satisfied and that consents are physically commenced within time so that valuable development consents are not lost.
by Anthony Whealy and Christina Renner

Developers of bushfire-prone land may soon get some welcome relief, as the Rural Fire Service (RFS) is now publicly exhibiting the long-awaited draft revised Planning for Bushfire Protection guidelines 2001 (the guidelines).

As developers of bushfire-prone land would be well aware, Council must generally be satisfied that the proposed development conforms to the requirements in the guidelines, and must consult with the RFS in this respect.

The guidelines, amongst other things, require the creation of asset protection zones to act as a buffer, generally of more than 10 to 15 metres, between the development and the bushfire hazard. Whilst sound in principle, the unfortunate effect of such zones is that developers often find a significant portion of their land effectively sterilised, unable to be developed, resulting in reduced potential yield from the site and, in cases we have seen, significantly reduced land values. This is often in circumstances where other forms of bushfire protection measures could sensibly have been employed to protect the development, without sterilising large areas of land, resulting in many developers calling for the RFS to be more flexible in considering alternative bushfire protection measures.

The draft revised guidelines suggest that there may be some relaxation in the requirements for asset protection zones. The draft revised guidelines focus on performance solutions rather than the use of prescriptive controls and provide an allowance for reduced asset protection zones in circumstances where it can be shown that the intent and performance criteria for asset protection zones will be satisfied. Depending on the RFS's application of such allowances, this could bring much relief to many developers.

A copy of the draft revised guidelines is available on the RFS website - http://www.bushfire.nsw.gov.au/. It is anticipated that the new guidelines will come into force in December 2006.
by Anthony Whealy and Kersten King

A new Bill was introduced into the NSW Parliament on 25 October 2006, seeking to give the Land and Environment Court (the LEC) jurisdiction to make orders to remedy, restrain or prevent damage to property or to prevent injury to any person due to a tree on neighbouring property.

Currently, an action in nuisance is only available once damage or substantial interference has occurred. The Bill will allow an application to be made to the LEC before any actual damage occurs. Where the Bill applies, the right to bring an action in nuisance will be abolished.

The Bill does not provide a remedy in situations where a neighbour’s tree causes only annoyance but is not causing actual damage or does not threaten damage to property or injury to persons. Nor does the Bill provide a remedy where a tree blocks a neighbour’s sunlight or view. There must be actual or threatened damage to property or persons.

Before applying to the LEC, the applicant must make a reasonable effort to resolve the matter with the tree owner and give notice of the application to the LEC, the tree owner and anyone else who may be affected.

The LEC may make any order it thinks fit to remedy, restrain or prevent damage to property or to prevent injury to any person. Failure to comply with an order is an offence which carryies a maximum penalty of $110,000. An order will bind any successor in title that has been given notice of the order.

In the event of non-compliance, councils will be able to access the land to carry out the work required by an order and recover its costs from the owner of the land on which the tree is situated.

The LEC may also award compensation for damage to property.

The Bill applies to land zoned residential (but not rural-residential), village, township, industrial or business, or land having the substantial character of such a zone, but does not apply to land vested in or managed by a council. The Regulations may extend or exclude the types of land to which the provisions apply.
by Anthony Whealy and Christina Renner

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