New South Wales Planning Quarterly

EP&A Act Amendment

On 7 May 2025, the latest bill to amend the Environmental Planning and Assessment Act 1979 (EP&A Act) was passed by the NSW Parliament.

While most of the amendments are, on their face, fairly minor in nature, some notable amendments include:

• Allowing for a modification application to be made where the modification only changes a condition of consent and does not change the development itself.
• In the context of assessing a development application, clarifying that only submissions made within the formal public exhibition period need to be considered by the consent authority.
• Clarifying that a concept approval does not prevent the lodgement of an inconsistent development application if the consent authority imposes a condition requiring modification or surrender of the concept approval.

The second reading speech states the bill was introduced in part to respond to certain decisions in the NSW Land and Environment Court, and Court of Appeal.

Updates in NSW Housing Policy

Community Housing Providers (Adoption of National Law) Amendment Bill

On 3 June 2025, the NSW Government introduced the Community Housing Providers (Adoption of National Law) Amendment Bill 2025 (the CHP Amendment Bill) to the lower house.

The CHP Amendment Bill is intended to improve regulation of affordable housing in NSW. It proposes to require developers, who are required by conditions of their development consent to provide affordable housing, to register the dwelling on a registrar of affordable housing. An occupancy certificate may not be granted until this is done.

If passed in its current form, the amendments will also require an affordable housing restriction to be registered on title. An owner of a registered affordable housing dwelling will then be obliged to manage the dwelling in accordance with the Affordable Housing Guidelines. Read more here: Community Housing Providers (Adoption of National Law) Amendment Bill 2025.

20 more projects declared state significant through the Housing Delivery Authority

A further 20 projects have been declared as State Significant Development following recommendations from the Housing Delivery Authority (HDA) that has been established by the NSW Government. See Media Release and Ministerial Order here.

The first State Significant Development Application (SSDA) has been lodged under the HDA pathway, four months after the HDA opened Expressions of Interest.

The SSDA proposes a 7-8 storey Residential Flat Building with 106 dwellings including affordable housing under the Gordon Transport Oriented Development controls.

The SSDA comes as the Minister for Planning and Public Spaces has declared a further 16 proposals of state significance, which if approved, could deliver more than 5400 homes, including affordable housing. Of these proposals, 13 are in metropolitan Sydney and 3 are in regional NSW. Read more here: First State Significant Development Application lodged under the Housing Delivery Authority | Planning

Crown Development Application Guidelines

The NSW Department of Planning, Housing and Infrastructure (DPHI) has published a new Planning Circular dated 26 May 2025 and Guidelines for Crown Development Applications under the EP&A Act dated May 2025. This material is available on the DPHI website here and replaces the former Circular D6-Crown development applications and conditions of consent, which was prepared  in 1995.

The circular advises on the requirements that apply to Crown development applications, including the application of, and exemption from, certain requirements of the EP&A Act.

The guidelines provide information for agencies preparing Crown development applications for local development or regionally significant development, and for consent authorities to assess those development applications.

Biodiversity Conservation Regulation 2017 update

On 9 May 2025, the NSW Government amended the Biodiversity Conservation Regulation 2017 to provide for the making of ‘strategic offset delivery agreements’ (SODA) in relation to certain State significant development and State Significant infrastructure.

A SODA provides a new way for certain electricity infrastructure proponents to deliver biodiversity offsets which may be required as part of a project’s conditions of consent. A SODA may be entered into in relation to certain electricity transmission infrastructure, generation and storage infrastructure in a Renewable Energy Zone or other renewable energy generation outside renewable energy zones that have entered long-term energy service agreements.

A SODA is an agreement with the Environment Agency Head made after development consent is given, to retire like-for-like biodiversity credits and/or fund biodiversity conservation action that would benefit the relevant threatened species or ecological communities. A SODA will not be entered into unless the Secretary is satisfied that the benefit to biodiversity values provided by the actions in the SODA matches or exceeds the benefit to biodiversity values of the retirement of the required number and class of biodiversity credits.

Before entering into a SODA a notice of intention to enter into the agreement will be published by the Secretary. The regulation also provides for a public register of SODAs.

The amending regulation can be found here: sl-2025-198.

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2025] NSWLEC 48

In this recent decision, the NSW Land and Environment Court found Aerotropolis Pty Ltd guilty of 20 offences under the National Parks and Wildlife Act 1974 (NSW) (NPW Act) and the Biodiversity Conservation Act 2016 (NSW) (BC Act). The charges arose from the unlawful clearing of native vegetation, including 36.8 hectares of the Cumberland Plain Woodland endangered ecological community (EEC) which was also habitat of a threatened species (the land snail), at a property in Bringelly, over a period extending from April 2016 to May 2020.

This case is notable given the infrequency of prosecutions under the NPW and BC Acts, and the unusual circumstance that the charges proceeded undefended. Despite initially defending the charges, the company ceased participation after a liquidator was appointed in August 2024 and the liquidator did not participate in the proceedings. The Court held that there was no impediment to it continuing to determine criminal charges during the voluntary winding up process as the company had not yet been deregistered.

While the land clearing itself was carried out by the defendant’s employee, the evidence of communications between the defendant’s director and his employee demonstrated this was done under the defendant’s instruction. The Court was satisfied that the defendant was either directly or vicariously liable for the strict liability offences under the NPW Act and BC Act.

In respect of damaging the EEC and habitat of a threatened species, it was necessary to establish the defendant had knowledge that it was an EEC and habitat of a threatened species by establishing the state of mind of its employees and agents. The Court again looked to correspondence between the director and his employee, agreeing with the prosecutor that it was not necessary to prove the defendant knew the nomenclature of the EEC, but only that it was a protected native habitat. In fact, the director had informed his employee the property contained ‘endangered Cumberland Plane Woodland’, establishing that the defendant knew that the habitat concerned was habitat of the relevant kind. The evidence established the director had at times instructed his employee to leave mature gum trees, indicating the director and his employee knew the difference between vegetation types, but proceeded to clear mature native vegetation.

In the absence of the defendant, the Court also considered whether the defendant could have been entitled to any defence. This included relying on a certificate issued under s 13.31 of the BC Act that no development consent, approval, or licence from Camden Council, NSW Rural Fire Service, Local Land Services, or any other relevant authority was in force at the time of the clearing that would have given lawful authority to undertake the clearing.

The Court found that Aerotropolis Pty Ltd was guilty of all alleged offences and the matter has been adjourned for sentencing.