Posted on February 24, 2022 by Megan Hawley and James King 17

Commencement of the Environmental Planning and Assessment Regulation 2021

The Environmental Planning and Assessment Regulation 2021 (‘EP&A Reg 2021‘) commences on 1 March 2022 with the Environmental Planning and Assessment Regulation 2000 (‘EP&A Reg 2000‘) to be repealed on the same day. The NSW Government has stated that the EP&A Reg 2021 is designed to make the planning system easier to use by remaking, reordering and refining the provisions of the EP&A Reg 2000 as well as introducing changes intended to:

• cut red tape;
• simplify the planning system;
• reduce assessment timeframes; and
• increase transparency.

In two previous posts (see here and here) during the exhibition period of the draft EP&A Reg 2021 we alerted readers to some of the significant changes outlined in the proposed EP&A Reg 2021. This blog will provide a summary of the changes which have been introduced by the finalised EP&A Reg 2021.

The final version of the EP&A Reg 2021 is available here.

The major changes contained in the EP&A Reg 2021 are set out below.

Development applications

The EP&A Reg 2021 requires all development applications to be made in the new approved form and to include all the information and documents specified in the approved form (including information previously in Schedule 1 of the EP&A Reg 2000). The approved form is located on the Planning Portal.

The Department will consult with Councils on possible improvements to the approved form following its commencement.

If a development application is lodged, and then the development application is amended before determination, the application must contain details of proposed changes, including the name, number, and date of any plans that have changed.

Assessment timeframes

The provisions for calculating assessment periods and ‘stop the clock’ rules have been amended. The assessment period determines when an appeal against a ‘deemed refusal’ of the development application can be lodged.

The first two days after the development application is lodged and the two days following the day that a consent authority refers or notifies a concurrence authority or approval body are now counted in the assessment period.

Consent authorities and approval bodies must specify a reasonable period within which any additional information sought from an applicant is to be provided.

An information request issued by a consent authority must specify how many days have elapsed and when the assessment period ceases to run, in order to provide clarity around when the clock is stopped on the assessment period.

Determination notification

The EP&A Reg 2000 previously required a complete notice of determination (containing the full list of information set out in the EP&A Reg 2000) to be issued to the applicant and all other parties. The EP&A Reg 2021 only requires a letter be sent to a party other than the applicant.

Consent authorities can also upload the notice of determination to the Planning Portal instead of sending it to an approval body.

Modification applications

The EP&A Reg 2021 aims to provide a more consistent framework for the modification of development consents.

If a modification application is lodged, and then the modification application is amended before determination, the application must contain details of proposed changes, including the name, number, and date of any plans that have changed.

Certain minor modification applications no longer need to be referred to concurrence or approval bodies unless they propose changes to conditions or terms of approval required to be imposed by the concurrence or approval body. There is also no longer a need to provide a copy of a modification application to a concurrence or approval body if the modification application is rejected or withdrawn within 14 days.

The EP&A Reg 2021 also clarifies that:

• the consent authority can reject a modification application in certain circumstances;
• withdrawal provisions afforded to development applications also apply to all modification applications; and
• no landowner’s consent for surrenders and modifications is required where the original development application could have been made without the consent of the landowner.

Complying development certificates

Complying development certificate (‘CDC‘) applications must be in a prescribed form. Additional information to be included in an application includes:

• details of the site configuration and building envelope;
• detailed engineering plans for telecommunications or electricity works;
• a scaled site plan with any registered easements shown; and
• the maximum site coverage of the land.

The EP&A Reg 2021 also requires a CDC application on land that has been declared as contaminated under section 60 of the Contaminated Land Management Act 1997 to be accompanied by a site audit statement by a qualified person.

Designated development

Designated development is a category of development which involves a higher level of assessment including consideration of an environmental impact statement (‘EIS‘) due to potential environmental risks.
The EP&A Reg 2021 revises the categories of development that are designated development to include certain emerging technologies (such as energy recovery from waste or large batteries) and to exclude a number of lower risk activities (such as solar power generators producing less than 30 MW).

Certain designated development thresholds are also amended to align with the equivalent thresholds and terminology under the Protection of the Environment Operations Act 1997.

The amendments also update the location-based criteria for designated development, with a revised definition ‘environmentally sensitive area of State significance‘ replacing the previous ‘environmentally sensitive areas‘ term.

State significant development

Alterations to the provisions relating to State significant development (‘SSD‘) applications were made to the EP&A Reg 2000 in 2021. Those changes will be carried into the EP&A Reg 2021. Proponents should be aware of the requirement to consider the new State Significant Development Guidelines (available here) when preparing an EIS for SSD. That requirement will not apply to development applications lodged before 31 March 2022 if the Planning secretary’s environmental assessment requirements for the EIS were provided before October 2021.

Environmental assessment under Div 5.1, Part 5 of the Act

Division 5.1 of Part 5 applies to ‘activities‘ that do not require development consent, and requires a consideration of the environmental impacts of the activity. If the activity is likely to have a significant impact on the environment, an EIS is required. The provision which sets out the factors to be taken into account when determining whether the activity will likely have a significant impact on the environment has been renamed to reference a ‘review of environmental factors‘ (‘REF‘), and details the preparation of an REF. This formalises the common practice of referring to the environmental assessment as a review of environmental factors. The EP&A Reg 2021 also makes a distinction between this step in the process, and the considerations and factors relevant when preparing an EIS, if the activity is likely to significantly affect the environment.

Some additional changes to the Part 5 assessment process included in the EP&A Reg 2021 are:

• The REF for certain activities (including with a capital investment value of over $5 million) are required to be published on the determining authority’s website or the Planning Portal before the activity commences; and
• The Planning Secretary can prescribe guidelines for the factors to be taken into account when preparing an REF.

The new guidance for undertaking Part 5 activities is expected to be finalised in 2022.

Planning certificates

A planning certificate is a document issued by a council specifying matters so that landowners, applicants and purchasers have clear, accurate and reliable information about the land to which the certificate relates.

Schedule 2 of the EP&A Reg 2021 sets out the matters required to be specified in a planning certificate.

Additional matters which must now be included on planning certificates include:

• Draft development control plans (‘DCP‘) which have been subject to community consultation alongside draft environmental planning instruments (‘EPI‘). However, draft EPIs or DCPs that have not been made within three years from the date they were last on public exhibition do not need to be included on planning certificates;
• Whether any additional permitted uses apply to the land under the relevant local environmental plan;
• Information on all relevant State environmental planning policies that zone land;
• Key land use classifications that affect the ability to undertake exempt development;
• Whether a policy exists that restricts the development of land because of contamination, aircraft noise, salinity, and coastal hazards and sea level rise in addition to the previous hazard risks; and
• Whether land is in a special contributions area or whether there are any applicable draft contributions plans.

The above changes to the requirements for planning certificates commence on 1 October 2022.

Fees and charges

Fixed fees have been updated to reflect movements in the consumer price index (‘CPI‘) that have occurred since the last CPI-related increase to fees in the EP&A Reg 2000 in 2011. Ongoing minor adjustments are allowed in these fees either annually or biannually to reflect changes in CPI.

The first increase to these fees applies from 1 July 2023.

Transitional arrangements and further planned changes

As stated above the EP&A Reg 2021 commences on 1 March 2022. Transitional arrangements apply for certain provisions under the EP&A Reg 2021.

The EP&A Reg 2000 continues to apply to a development application or CDC application made but not finally determined before 1 March 2022.

Schedule 6 sets out the savings and transitional provisions for the EP&A Reg 2021. They include:

• The provision for REFs in Part 5 assessments does not apply in relation to an activity if the determining authority had, immediately before 1 March 2022, considered the likely impact of the activity under the EP&A Reg 2000;
• Councils must maintain their registers of development applications and CDCs in accordance with the EP&A Reg 2000 for any of the following if they are lodged before 1 March 2022:
  • development applications;
  • CDC applications; or
  • CDCs issued.
• Planning Certificates are to be made in accordance with the EPA Reg 2000 until 1 October 2022 to ensure councils have time to update their systems and prepare a standard template.

Schedule 8 of the EP&A Reg 2021 provides for a range of further provisions which do not commence until 1 July 2022. Those include:

• A requirement for the declaration about the preparation of an EIS for SSD to be made by a registered environmental assessment practitioner; and
• Detailed further provisions outlining councils’ requirements to keep a development contributions and levy register and accounting records for contributions plans. Councils must also disclose in their annual reports how development contributions and levies have been used under each contributions plan.

References and assistance

There are a range of documents which have been published by the State Government to assist in understanding and using the EP&A Reg 2021 (available on the Planning Portal):

• EP&A Regulation Overview guide;
• Designated Development guide;
• Development Assessment and Complying Development guide;
• Infrastructure and Environmental Impact Assessment guide;
• Planning certificates guide; and
• Sections guide: this contains the new numbering of the sections in the 2021 EP&A Regulation.

To discuss this blog, please leave a comment or contact Megan Hawley on 8235 9703 or James King on 8235 9722.