Proposed NSW planning reforms promise “simpler, faster planning”

The NSW Department of Planning and Environment (DPE) has announced proposed amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act), affecting the strategic planning and approvals processes. The amendments are intended in part to expedite the grant of development consents, but are broad-ranging and will have commercial implications for various forms of development.

The relevant documents have been on public exhibition since 10 January 2017. Recently DPE extended the public consultation period so that submissions can now be made until 31 March 2017 (instead of 10 March 2017). The proposed amendments are expected to be introduced into State Parliament soon after public consultation. It is not clear whether the recent changes in the NSW Government ministry will result in any changes to the content and/or timing of the proposed reforms.

• New local strategic planning statements – Local strategic planning statements will be prepared by councils and are intended to provide greater clarity around the strategic context and priorities for the local government area and region. These will not form part of a local environmental plan (LEP) , but will be taken into consideration when rezoning or assessing planning proposals. This reform should encourage councils to focus on strategic and regional planning in decision-making. This is pertinent in light of the recently implemented reforms concerning the Greater Sydney Commission, where there is greater emphasis on strategic planning at a district/regional level and it clarifies how the goals in the regional and district plans can filter through to the local level.
• LEPs – Councils will need to update their LEPs every five years to ensure that they continue to align with regional and district plans, demographic changes, local infrastructure, and other planning changes. This should prompt councils to ensure LEPs continue to meet the changing needs of local stakeholders, and reflect the strategic and regional plans for the area. This is likely to be a mechanism for implementing the recently exhibited draft District Plans at a local level in the future.
• Development control plans– There will be more standardisation and consistency of development control plans (DCPs) between councils through the introduction of a standard format DCP with model provisions for inclusion. At present, there is no consistency across local government areas.
• Statement of reasons – Consent authorities are being encouraged to provide greater transparency by providing reasons for their decisions, with the statement of reasons being proportionate to the scale and impact of the decision. This should assist in understanding the decisions of consent authorities and also assist those considering challenging decisions.
• Consistency with existing development consent – When considering a modification, consent authorities will be required to consider the reasons for the original decision. This is intended to ensure that proper consideration is given to the original reasons why particular conditions were imposed.
• Planning agreements – The Minister for Planning will have clarified powers to issue directions concerning the methodology for preparing planning agreements.
• Local Planning Panels – Current independent hearing assessment panel provisions will be replaced with updated provisions on local planning panels (LPPs). The Minister may direct a council to establish a LPP to determine development assessments.
• Building design – A new object will be included promoting good design in the built environment.
• Regionally significant development – Regionally significant development will now be determined by the Sydney district or regional planning panel, however the threshold for regionally significant development will be raised. The proposed new thresholds for regionally significant development include:
  • development with a capital investment value (CIV) over $30 million;
  • private infrastructure and community facilities greater than $5 million;
  • certain developments with a CIV between $10 million and $30 million undetermined within 120 days and at the applicant’s request; and
  • certain development where council’s development assessment is unsatisfactory.

This will have the effect of increasing the number of assessments being performed, and approvals being granted, by councils.

• Overriding agency disagreements – The Secretary of the Department of Planning and Environment will have reserve discretionary powers to step in and give advice, concurrence or approval on behalf of another agency, where that agency has not provided the advice, concurrence, of approval within statutory timeframes or different agencies have provided conflicting advices. The Secretary can exercise these powers where council is the consent authority, potentially avoiding unnecessary delays. There is no explicit mechanism by which a developer could trigger these step in powers, and in what circumstances the Secretary will be inclined to exercise these powers.
• Simplification of complying development pathway – The complying development pathway will be simplified for low impact proposals. This is significant in light of concurrent reforms to expand the number and types of complying development, for example, the current plans to create medium density housing types of complying development.¹ Complying development certificates can be issued with deferred commencement provisions in certain circumstances, to make it more consistent with other development pathways.
• More consultation for certain Part 5 development – Public authorities relying on assessments under Part 5 will now be required to obtain concurrence or notification of public authorities to activities under Part 5 within future infrastructure corridors.  

• More streamlined processes – The proposed changes are intended to make the process faster, which may potentially reduce the costs of obtaining approvals.
• Potentially increased contributions for complying development – Complying developments will be captured by special infrastructure levies or be the subject of planning agreements. This is significant in light of proposals for including medium density housing as a form of complying development.
• Financial securities – Conditions of consent will require financial securities to fund the decommissioning or rehabilitation of sites. This is similar to the power to require financial assurances under the Protection of the Environment Operations Act 1997 (POEO Act ) and reflects the increasing focus by the Government to require the private sector to provide for any contingent environmental liabilities.
• Appeals against decisions – The scope of internal reviews will be expanded to include decisions about integrated development and state significant development (SSD). This may obviate the need to rely upon appeals to the Court.

• Limits on when developers will be able to regularise non-compliance – This is a significant change. Developers will no longer be able to regularise non-compliance through a modification of an existing development consent, as authorities and courts will be limited in being able to approve a modification in relation to works already completed. This is intended to strengthen deterrence of unauthorised works, so that unauthorised works which are not minor departures from the original development consent may be subject to enforcement action, such as orders requiring demolition, requiring a new building certificate, or issuing of penalty notices.
• Councils will have new investigation powers – Councils will be able to issue temporary 7-day stop works orders to investigate non-compliance with complying development certificates.
• Additional powers to create and enforce undertakings – Councils will be able to obtain orders from the Court where breaches have occurred in relation to undertakings requiring compliance, payment of money and/or compensation, and remediation of damage.

• Increased community participation – Councils will need to prepare community participation plans for upcoming proposals and development applications.
• Eight new principles for community participation – The new principles include: requiring proponents to consult with community members affected by proposed major development prior to lodging any development application, giving the community opportunities to participate in strategic planning.
• Increased community consultation – The new regulations are intended to incentivise consultation prior to lodgement of a development application.

• Lapsing of SSD conditions which are obsolete or duplicated in another approval – There are proposals to make new and existing conditions of development consents for SSD to “lapse” or be “modernised”. These include:
  • Some conditions of consent may provide that the condition will lapse on the issue of an approval under other legislation with substantially similar conditions. This is intended to avoid duplication in regulatory oversight of activities. This is relevant to, for example, proponents who hold an environmental protection licence (EPL) under the POEO Act, as conflicting or obsolete conditions under a planning approval are often an issue for also complying with the EPL for the premises. While this process of making approvals more consistent is welcomed, it is noted that this amendment does not address any inconsistency or overlap between conditions imposed under approvals granted under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and development consents granted under EP&A Act.
  • The Minister may also vary or revoke monitoring or environmental audit requirements in certain existing planning approvals, where those planning approvals require monitoring or auditing to be to the Minister’s satisfaction. This is intended to provide greater flexibility to ensure that conditions in older consents remain relevant, contemporary and enforceable. There is no current particular mechanism for a proponent to request such an update. The proposed reform may apply where an approval contains obsolete conditions either inconsistent with modern monitoring or auditing standards, or the proponent’s other regulatory obligations such as in EPLs.
• Part 3A – Transitional provisions relating to former Part 3A projects relating to modifications will be discontinued. Existing approvals under Part 3A or the transitional provisions will be transitioned to either SSD or State significant infrastructure (SSI) pathways (save for projects where construction is completed or underway). There will be a “two-month window” for proponents to apply for a modification under former s75W, after which, any modifications must be applied for under SSD or SSI pathways. The significance of this proposed change is that the power to modify SSD/SSI projects is narrower than the power to modify Part 3A projects under former s75W of the EP&A Act. The ongoing effect of approved Part 3A concept plans will be preserved.
• Building certification –Key provisions relating to building regulation and certification should become clearer to understand, by being consolidated into a single part of the EP&A Act.

Next step

The proposed amendments are expected to be introduced into Parliament shortly, following public consultation. If implemented, they will mean substantial changes to obtaining approval, and will also have implications for a number of existing approvals.

If you require further advice on what the proposed reforms will mean for your developments, please contact us for more information.

Full details of the proposed amendments, including the draft Bill and a summary of the changes may be found on the DPE website.