A closer look at proposed reforms to the NSW planning system and what they mean for you

Changes to concurrence and consultation requirements

Currently an environmental planning instrument (EPI) may require a consent authority to consult with or obtain the concurrence of a government agency in relation to a development application. For example, a development may be required to obtain the concurrence of Transport for NSW if it proposes to connect to a State road.

The Bill introduces the ability for this to be watered down to a “notify” requirement for a government agency. We expect that this will, at least in some instances, result in consultation or concurrence obligations being replaced with a need to only notify the relevant agency instead. In this vein, the Bill proposes changes to the way in which developments on certain bushfire prone land will be processed.

The Bill also proposes to change the consultation undertaken when making EPIs. This includes repealing section 3.25 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) which requires consultation with the Office of Environment and Heritage if a proposed EPI may adversely affect a critical habitat or threatened species, populations or ecological communities, or their habitats. When making a gateway determination for a proposed EPI, the Bill proposes to give the Minister wider discretion whether to consult with other state or public authorities.

Also, and as mentioned in our previous article, the Bill proposes to establish the Development Coordination Authority (DCA), meaning the Planning Secretary, to centralise approvals that are required in relation to development applications for integrated development. This means that decisions previously undertaken by various government agencies will be undertaken by the DCA, removing the need to rely on multiple agencies processing a development application. The functions of the DCA include any functions delegated to the DCA under the EP&A Act or imposed or conferred by an EPI.

The evaluation of development applications

One of the most significant changes proposed by the Bill is that the requirement to consider the likely impacts of a development under s4.15(1)(b) of the EP&A Act will be limited to “likely significant impacts”. This is a significant departure from the longstanding approach to environmental impact assessment under the EP&A Act to take account of all relevant impacts. Given the existing caselaw in relation to s 4.15 assessments, the threshold of significance is a matter which we anticipate will be subject of judicial guidance.

Another change proposed to this section is the ability for the Regulations to further prescribe the factors that must and must not be considered when evaluating the impacts of the development, the suitability of the site for the development and the public interest. This may give scope for the Minister to prescribe the factors to be taken into account for specific types of developments.

As mentioned in our previous article, the government is also introducing a new pathway for “targeted assessments”. These are certain developments, or classes of developments, that will be set out in a State Environmental Planning Policy (SEPP). For targeted assessments, the Bill proposes that the consent authority may only consider in its evaluation compliance with relevant planning controls and any relevant submissions. The consent authority will not be able to consider the environmental impacts of the development, suitability of the site or the public interest.

Consent conditions

While government agency consultation will be scaled back and consolidated, the Bill does propose that proponents will receive greater consultation on proposed consent conditions in relation to certain development specified by the Regulations. The Bill provides that before imposing a condition on a specified kind of development consent, the consent authority must give the applicant a copy of the proposed conditions, provide at least 7 days for written submissions to be made and then consider those submissions before imposing them.

The Bill also proposes to standardise conditions of consent by providing for a SEPP to include model conditions of consent. Where a SEPP provides for model conditions, it will be mandatory for a consent authority to impose the relevant model condition when granting consent to a development.

Modifications

The Bill proposes to move modifications of “no environmental impact” into the same category as modifications to correct a minor error, misdescription or miscalculation, being modifications under s 4.55(1) of the EP&A Act. This means that the procedural requirement to re-notify and consider submissions in relation to such modifications will be dispensed with. Section 4.55(1A) will still require these procedural steps be taken for modifications with minimal environmental impacts.

For modifications with no environmental impacts, the Bill also proposes to impose a timeframe on consent authorities (to be set by the Regulations) within which the consent authority must determine the application. If the consent authority fails to determine the application within this timeframe, it must approve the modification although it will still retain the discretion to impose conditions of consent. This appears to be targeted at ensuring consent authorities approve minor modifications swiftly.

Review of development applications

The encourage disputes to be resolved outside of the Land and Environment Court (Court), the Bill proposes an expanded ability to request internal review of decisions.

A proponent dissatisfied with the decision of a council (other than a decision to reject and not determine an application) may request a local planning panel to review the decision. Also, decisions of the DCA will be subject to internal review by the DCA. Significantly, the Bill provides for a “pausing” (as described in the second reading speech) of the clock relating to the timeframe for commencing an appeal to the Court to allow for a review. This is part of the NSW Government’s push to try to reduce the number of matters that end up before the Court.

The Bill also makes provisions for the Regulations to further govern the internal review process including by setting time frames for seeking internal review of the decision of a council.

Development Control Orders

Changes have also been introduced to address an issue with what the Hon Paul Scully, MP, Minister for Planning and Public Spaces labelled “zombie” consents in his second reading speech, including provisions extending the ability to issue complete works orders for development approvals granted under the repealed Part 3A of the EP&A Act.

Changes to Part 5 approvals

The Bill proposes a significant change to the level of assessment undertaken for activities under Part 5 of the EP&A Act.

Currently, when considering an activity determining authorities must examine and take into account “to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”. This is a high bar and sometimes requires an extensive assessment process for activities of a relatively minimal impact. The Bill proposes to amend this section so that the assessment required is not “to the fullest extent possible” but instead is “in a manner that is proportionate to the nature and risk of the activity”.

If made, this amendment may reduce the burden on determining authorities when undertaking assessment of routine works. This is because the proposed new test is intended to match the level of assessment with the level of risk of the specific activity. This change is consistent with the general theme in the Bill which appears to adopt a risk-based approach, but is a substantial move away from the established test and the existing caselaw which examines what it means to assess impacts to “the fullest extent possible” (including Jarasius v Forestry Commission (NSW) (No 1) (1988) 71 LGRA 79). No doubt the Land and Environment Court will be called upon to consider what is meant by the phrase “proportionate to the nature and risk of the activity” in the proposed new test.

Conclusion

If passed in its current form, the Bill proposes a number of significant reforms to the way development is planned for and assessed in NSW. It is important to note however that many of the proposed reforms take the form of enabling provisions; they provide for the details to be provided for in regulations and SEPPs. As these instruments will likely not be released until after the Bill is passed, a number of the practical details of the reforms will not be known for some time. We understand that the NSW Government has a target of completing these reforms within nine months.

Please contact our Environment and Planning team if you would like further information about how these reforms update might impact your particular situation.