Posted on January 11, 2021 by Anzer Khan and Sue Puckeridge

Commencement of Development Consents: Requirement for Registration on the NSW Planning Portal

With the commencement of the Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2020 on 1 July 2020, the NSW planning portal became the central platform for the making of development applications (and other applications) with a consent authority. To read more about these changes, you can click here to read our earlier blog.

This blog discusses the consent authorities’ obligations under the Environmental Planning and Assessment Act (the Act) and the Environmental Planning and Assessment Regulation 2000 (the Regulation) with respect to the publication of notices of determination of a development application on the NSW planning portal.

Once an application is lodged on the NSW planning portal, the portal becomes the gateway for information exchange throughout the application process.

Councils within local government areas specified in cl 296 of the Regulation had until 31 December 2020 to transition to the NSW planning portal.  All other councils may continue to require certain applications to be carried out without using the planning portal until 1 July 2021.

Registration of Notice of determination on the NSW planning portal

Section 4.18(1) of the Act provides that a consent authority must, in accordance with the Regulation, notify its determination of a development application to –

(a)  the applicant, and

(b)  in the case of a development application for consent to carry out designated development, each person who made a submission under Schedule 1, and

(c)  such other persons as are required by the regulations to be notified of the determination of the development application.

Importantly, s 4.20(1) of the Act provides that a development consent has effect on and from the date it is registered on the NSW planning portal, except in relation to designated developments.

Designated development consents are taken to have effect on and from the end of 28 days after the date they are registered on the NSW planning portal unless the development consent was granted following a public hearing by the Independent Planning Commission or the development is State significant development (s 4.20(2) of the Act).

How soon must a Notice of determination be published?

A consent authority must publish the notice of determination of a development application on the planning portal within 14 days after the date of determination (cl 102(1)(a) of the Regulation).

For those Councils which have transitioned to the NSW planning portal before the transitional dates set out in cl 296 of the Regulation, the requirement also applies to development applications which commenced but were not determined prior to the Council transitioning to the NSW planning portal.

Decisions made on Appeal to the Land and Environment Court

A development consent granted by the Land and Environment Court (Court) on appeal must also be registered on the NSW Planning Portal.  It will also take effect from the date it is registered, subject to any order from the Court: s 8.13(3) of the Act.

The Court is working towards a system where case law decisions will be linked to the planning portal. The Court now requires consent authorities to file draft determinations rather than draft conditions. Ultimately the aim is to enable the system to be capable of automatically uploading the draft determination to the planning portal.

On 22 December 2020, the Court issued a template determination for any determination to grant a consent that can be registered on the Portal. The template is to be used when parties submit draft conditions of consent in accordance with the Court’s Class 1 Practice Notes and directions.

Until such time that the Court establishes an integration with the planning portal, Councils should ensure they publish on the planning portal the notice of determination issued by the Court within 14 days of judgment being delivered.

If you would like to discuss this blog, please contact Anzer Khan on 8235 9717 or Sue Puckeridge on 8235 9702.