Posted on February 20, 2025 by Katie Mortimer and Samantha Hainke 19

ALERT: Amendments to the EPA Act introduced to NSW Parliament proposing housing targets, changes to concept development & affordable housing conditions, modification applications for the bare deletion of conditions & more

Yesterday, a Bill to amend the Environmental Planning and Assessment Act 1979 (Act) was introduced by the Minister for Planning and Public Spaces to NSW Parliament.

The Minister stated that the Bill is to support the delivery of housing and to ‘restore certainty’ in planning assessment following decisions of the Land and Environment Court and Court of Appeal.

Declaration of Housing Targets

A new section 3.2A is proposed to be inserted to the Act, that will allow:

The Minister may, by order published on the NSW legislation website, declare a housing target for a region or a local government area, comprising—
(a) the target number of additional dwellings for the region or local government area, and
(b) the period within which the target must be achieved.

The Bill proposes a mechanism permitting the Planning Secretary to include any declared housing targets in regional strategic plans. Section 3.8 would be amended to provide that the making of a strategic plan requires local councils to review the local environmental plans applying to the relevant area (as soon as practicable) and prepare such planning proposals as are necessary to give effect to the regional strategic plan (via new s3.3(2A) and amendments to s3.8). That obligation presently arises on the making of a district strategic plan only.

Planning proposal authorities would also be required to give effect to any applicable regional strategic plan (which would include any housing targets) when preparing a planning proposal generally under s3.33 of the Act.

The Bill also proposes that:

• References to the ‘Six Cities Region’ and ‘designated Sydney districts’ be omitted and replaced with ‘designated Sydney local government area’ which will include the LGAs specified in amended Schedule 9,
• The Greater Sydney Region Plan—A Metropolis of Three Cities will no longer be the regional strategic plan made under Division 3.1 of the Act.

Modification Applications to affect the bare deletion of conditions (again)

The Bill proposes amendments to sections 4.55 and 4.56, responsive to the Court of Appeal’s decision in Ku-Ring-Gai Council v Buyozo Pty Ltd [2021] NSWCA 17. The decision in Buyozo fundamentally altered the long-held understanding of the modification powers in the Act, with Preston CJ holding that modification powers (save for s4.55(1)) were only available where some change is proposed with respect to the development for which consent was granted (see our post here).

The Bill would revert the law to how it was applied before Buyozo, via the insertion of a new s4.55(5):

To avoid doubt, a consent authority is not prevented from modifying a consent under subsection (1A) or (2) merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.

A similar provision would be inserted to s4.56.

Interestingly, changes to s4.55(1A) and (2) are proposed that replace the requirement that the development to which the consent as modified relates is ‘substantially the same’, to a requirement it be ‘the same or substantially the same‘, presumably to reinforce that no change to the development is necessary to approve a modification application. The Bill also proposes to alter section 4.55(1A) so that it allows ‘modifications involving no or minimal environmental impact’. 

Concept Development Applications to be modified via conditions of a subsequent DA 

Whilst a concept development consent remains in force for a site, s4.24(2) of the Act requires the determination of any further DA in respect of the site to not be inconsistent with the concept development consent. Historically, this has caused practical difficulties for proponents and consent authorities if the circumstances or legislation that apply to a site change over time (for example, an increase in fire risk, or the current housing bonuses).

The Bill proposes to insert new section 4.24(4) which would provide:

Subsection (2) does not prevent the determination of a further development application for the site that is inconsistent with the concept consent if the consent authority determines the application by granting development consent subject to a condition requiring the modification or surrender of the concept consent.

The insertion would put beyond doubt the legality of imposing conditions of development consent under s4.17(1)(b) and (5) of the Act, that affect a change to the concept development consent. The Land and Environment took this approach in 2023 in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24.

The Bill proposes no constraint on how such conditions could be applied. In practice, this could be used to undermine the purpose of concept development consents and remove the recognised benefit of a concept development consent setting parameters for the determination of any future DA lodged for a site.

Affordable Housing Conditions

The Bill seeks to amend s7.32(1) of the Act, which specifies when conditions may be imposed that require the dedication of land free of cost, or the payment of a monetary contribution, both to be used for the purpose of providing affordable housing.

Section 7.32(1) currently provides that it applies to a DA in an area where a State environmental planning policy identifies that there is a need for affordable housing within the area and:

The Bill proposes to omit subsections (a) – (d) above. The First Reading Speech states that this: will streamline the development application process for councils by clarifying when a condition requiring an affordable housing contribution can be imposed on a development consent. 

The Bill also proposes to amend section 7.32, which specifies when a condition may be imposed under s7.32. Such a condition needs to be authorised to be imposed by an environmental planning instrument. A condition can only be imposed if it requires a reasonable dedication or contribution. In determining what is reasonable, regard will no longer need to be given to the extent of the need in the area for affordable housing, and the scale of the proposed development, and only any other dedication or contribution required to be made by the applicant under this section or section 7.11.

Clarification as to what constitutes a ‘submission’ in community participation requirements

In response to the Court of Appeal’s decision in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41, the Bill proposes to amend Schedule 1 of the Act which governs mandatory community participation requirements.

Section 15 which provides for ‘submissions during exhibition period’ would be amended to include that:

(3) A submission made after the end of the period specified in subclause (1) or (2) is not a submission for the purposes of the Act, the regulations or an environmental planning instrument.
(4) Subclause (3) does not prevent a consent authority from considering a submission made after the end of the period specified in subclause (1) or (2).

In Filetron, the Court of Appeal stated that section 15 of Schedule 1 does not say that submissions may only be made during the minimum public exhibition period (at [226]). The First Reading Speech states this change provides clarity, particularly when the number of submissions establish who is the relevant consent authority.

Process for declaring Residential Accommodation as State Significant Development

Section 4.36 of the Act presently allows the Minister to declare specified development to be State significant development (SSD) but only if the Minister has obtained and made publicly available advice from the Independent Planning Commission (IPC) about the significance of the development.

The Bill proposes to exclude ‘residential accommodation’ from the requirement that the Minister obtain the IPC’s advice before declaring SSD. The First Reading Speech states that this process is an unnecessary duplication, slowing down the determination process of housing projects that are urgently needed. ‘Residential accommodation’ would be defined in section 1.4 to have the same meaning as in the Standard Instrument LEP.

Exemption for Housing Delivery Authority from conducting meetings in public 

Finally, the Bill proposes to amend the Environmental Planning and Assessment Regulation 2021 to make the Housing Delivery Authority exempt from the Act’s requirements that planning bodies conduct meetings in public.

We will post further once the Bill is passed.

The tabling copy of the Bill is available here: Environmental Planning and Assessment Amendment Bill 2025

To discuss this post please leave a comment or contact Katie Mortimer on 8235 9716 or Samantha Hainke on 8235 9727.