Posted on October 25, 2017 by Lindsay Taylor and Liam Mulligan

ALERT – Amendments to the EP&A Act – Environmental Planning and Assessment Amendment Bill 2017

On 18 October 2017, the NSW government introduced the Environmental Planning and Assessment Amendment Bill 2017 (‘Planning Bill‘) into Parliament.  The Planning Bill substantially amends the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) in a number of important respects. This blog takes a look at some of the more major changes proposed in the Planning Bill. For instance, the Planning Bill introduces two types of new plans which consent authorities will need to prepare and implement – Community Participation Plans (‘CPP‘) and Local Strategic Planning Statements (‘LSPS‘) – as well as introducing a power for councils to accept enforceable undertakings from developers and others who breach the EPA Act. The Planning Bill also provides for the standardisation of development control plans, so that they can be embedded into the Planning Portal, as well as providing for the entry into voluntary planning agreements in respect of complying development.

New plans – ‘CPP’s and ‘LSPS’s

Community Participation Plans

Under the revised Part 2 of the EPA Act, which will be titled ‘Planning Administration’, consent authorities will be required to prepare CPPs, detailing how and when they will undertake community participation activities when exercising their planning functions. This requirement will apply to the Minister, the Secretary of DPE, the Greater Sydney Commission, local councils, local planning panels and the Independent Planning Commission (formerly the PAC). It will also apply to determining authorities under (what is currently) Part 5 of the EPA Act. Schedule 1 of the revised EPA Act sets out requirements as to which instruments and decisions must be notified, the minimum exhibition times, provisions relating to public notification and mandatory notification requirements. The Schedule shows that much of the detail will be left to regulation.

Local Strategic Planning Statements

Local councils will also be required to prepare and adopt a LSPS for their local government area. The LSPS will set out Council’s strategic planning priorities for the area. The LSPS may in some cases be prepared on a ward-by-ward basis, with councillors who represent a particular ward given particular input in respect of that area. The LSPS must set out the economic, social and environmental basis for the Council’s strategic planning, as well as actions required to achieve Council’s goals and strategic priorities. The statements will also be subject to review every 7 years. Planning proposals will in future need to specifically address the ways in which they will further Council’s strategic plans for the area as set out in the LSPS.

Enforceable undertakings

The Planning Bill makes provision for the Secretary of the Department of Planning and Environment (‘DPE‘) to accept enforceable undertakings in relation to breaches of the EPA Act. It is envisaged that these undertakings will generally be negotiated between councils and parties who have breached the EPA Act, with the Secretary of DPE signing off on the terms of the undertaking. Where such an undertaking is breached, the Secretary may apply to the Land and Environment Court for orders, including orders:

• requiring compliance with the undertaking,
• directing the payment of money to the Secretary, being an amount up to the amount of any gain the person may have obtained by breaching the undertaking, or
• requiring the person to make good, abate, mitigate or repair any damage caused to the environment by the breach of the undertaking.

The introduction of enforceable undertakings provides a greater scope for councils (and other planning bodies) to negotiate appropriate outcomes in respect of breaches of the EPA Act.

VPAs and State infrastructure contributions

Under the Planning Bill reforms, the use of VPAs will be extended to complying development. This reform has the potential to significantly expand the scope and application of VPAs and reflects the government’s intention to increase the use of the code-assessable complying development system.

The Bill also makes clear that State infrastructure contributions (‘SIC‘s) can be required in respect of complying development and enables the Minister to direct private certifiers to impose SIC conditions, in the same way that the Minister currently directs other consent authorities to do.

Standardization of development control plans

The Planning Bill also introduces provisions to provide a uniform style for development control plans (‘DCP‘s). There are currently more than 400 DCPs in force in NSW, with widely differing styles and formats between councils, which can make the interpretation and implementation of the plans difficult.  The introduction of a standard format will, hopefully, make DCPs easier to understand and will allow for the integration of DCP controls with the Planning Portal.

The standard form will be contained in the regulation accompanying the Planning Bill, which has not yet been released, so it remains to be seen what the new standard DCP will look like. It is also not clear exactly when councils will be required to adopt the new standard form but it would seem likely that a general migration will occur over the coming years when DCPs are reviewed and updated as part of councils’ usual strategic planning process.

Other notable changes 

Other notable amendments include:

• Development consents will now have effect on and from the date that they are registered on the NSW Planning Portal. This replaces the current situation under s 83 where consents take effect from the date endorsed on the Notice of Determination. The Planning Bill shows that the much of the detail regarding the operation of the Planning Portal will be left to regulation.
• The Secretary of DPE will now have a discretionary step-in power 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 the statutory timeframe.
• Applications for integrated development will now be subject to review under Divison 8.2 (equivalent to a s 82A review). Determinations by councils, local planning panels, a Sydney district or regional planning panel, or a delegate of the Minister (other than the IPC or the Secretary of DPE) will all now be reviewable.
• The decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 has been addressed. A construction certificate which is not consistent with the development consent can now be declared invalid  (but only if proceedings are commenced within 3 months of the construction certificate being issued).
• The transitional arrangements in respect of the former Part 3A are to be wound up, although this will not occur immediately. The Minister’s 2nd reading speech indicates that in the future, the modification of existing Part 3A approvals will be assessed as either SSD or SSI.
• Building and subdivision certification provisions have been simplified and consolidated into a single part of the EPA Act (the new Part 6), to remove confusion for developers and certifiers and respond to the recommendations of the 2014 Lambert Report.

Housekeeping amendments

The Planning Bill substantially amends the EPA Act by:

• rearranging the existing 8 parts of the Act into a new 10 part structure, and
• introduces decimal numbering.

This will obviously present a challenge to experienced users of the Act who have become used to such familiar things as Parts 4 and 5, and s79C assessment, s82A reviews, s94 contributions and s96 applications.

This alert was prepared by Dr Lindsay Taylor and Liam Mulligan.