Posted on January 12, 2017 by Megan Hawley

New Planning Laws for NSW – An initial overview

Earlier this week the NSW Government released an exposure draft of the Environmental Planning & Assessment Amendment Bill 2017 (Amendment Bill)  which proposes to make a range of amendments to the Environmental Planning and Assessment Act 1979  (EPA Act).

What’s proposed?

The proposed changes in the Amendment Bill build on some of the proposals in the Planning Bill 2013 (Planning Bill) which was dropped by the government after amendments were made in the upper house. The Amendment Bill also proposes a range of new measures claimed to improve and modernise the current NSW Planning system. They include:

• requiring planning authorities to prepare community participation plans explaining how the authority will engage the community in plan-making and development decisions;

• updating the current minimum public exhibition requirements;

• requiring councils to develop and publish local strategic planning statements which will explain how strategic priorities at the regional and/or district level are given effect at the local level through LEPs and DCPs;

• measures to ensure that local environmental plans are kept up to date by completing a five-yearly LEP check against set criteria and working with the Department of Planning to implement any necessary changes identified through these checks;

• standardising the structure and format of councils’ development control plans to make them easier to understand and navigate;

• yet to be detailed incentives for developers to consult with neighbours and the surrounding community to ensure disputes are resolved prior to a development application proceeding to council;

• discretionary step-in powers for the Secretary of the Department of Planning  in relation to integrated development. The Secretary will be able to provide advice, concurrence or general terms of approval if there is conflict between two or more government agencies or if an agency has not provided the necessary information within statutory timeframes;

• preventing the use of modification applications in circumstances where works have already been constructed (except in limited circumstances);

• extending and improving the complying development assessment process to include greenfield developments and terrace housing and making changes to ensure that if a complying development certificate does not comply with the requirements of the SEPP it can be declared invalid. This latter proposal is in response to the decision in Trives v Hornsby Shire Council [2015] NSWCA 158;

• ending transitional arrangements in respect of the repealed Part 3A. Modification of existing Part 3A approvals will be determined in the same way as either SSD or SSI approvals;

• focusing councillor attention on strategic planning with greater numbers of DA assessments being processed by council staff or local planning panels;

• introducing a revised practice note, policy, planning circular and Ministerial directions to make planning agreements between developers and councils fairer,  more consistent and more transparent.  If adopted, the direction will require that local councils have regard to specific principles, policy and procedures when negotiating or preparing a planning agreement;

• increasing the use of independent planning panels and creation of a uniform set of rules, responsibilities and functions to ensure consistency in their operation across the state. Under this model the elected council sets the strategy, policy and standards for development on behalf of their constituents, while technical assessments and decisions are made by independent experts in line with council’s framework. It is proposed that the Minister would have the power to direct a council to appoint a local planning panel where this would improve the quality and timeliness of planning decisions in the local area;

• simplifying and consolidating building provisions into a single part of the EPA Act to remove confusion for developers and certifiers. In addition to this there will be new provisions in the EPA Act to ensure that a construction certificate must be consistent with a development consent and that it can be declared invlaid by a court if it is inconsistent with a consent (but only if proceedings are commenced within 3 months of the construction certificate being issued). This is clearly a response to the decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404;

• widening the availability of internal review options for proponents aggrieved by council decisions as a faster, low cost alternative to court action; and

• introducing a new enforceable undertakings regime similar to existing regimes under the Protection of the Environment Operations Act 1997 and other legislation, in order to assist regulatory authorities to enforce compliance with the terms of development consents.

Notably the Amendment Bill does not include the code assessment provisions from the Planning Bill which were rejected by the upper house.

However not all of the proposed reforms from the Planning Bill have been abandoned. One example of this is that under the Amendment Bill, when preparing community participation plans, planning authorities will need to have regard to community participation principles that will be set out in the EPA Act. These principles have been developed from the community participation charter that was proposed in the Planning Bill.

Next Steps

Keep an eye on our in focus posts for further and more detailed analysis of the Amendment Bill in coming weeks.

The exposure draft of the Amendment Bill is open for public comment from 9 January – 10 March 2017, and can be viewed here.

Should you wish to discuss the proposed changes, please contact Megan Hawley, Partner on 8235 9703 or by email, at megan.hawley@lindsaytaylorlawyers.com.au