Posted on January 30, 2023 by Megan Hawley and

ALERT: New planning regulations require a landowner’s consent to development to be in writing

On 25 November 2022, the Governor of NSW made the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 (‘Amendment Reg’).

The Amendment Reg makes some small but notable changes to the Environmental Planning and Assessment Regulation 2021 (‘EPA Reg’), as well as other planning regulations. We outline some of those changes in this blog post.

Requirement for the written consent of landowners to development applications

The Amendment Reg amends section 23 of the EPA Reg such that an owner’s consent to the making of a development application must be in writing.

This is a significant departure from the section as previously drafted. The section as previously drafted required an applicant to have the owner’s consent but not in any particular form.

It will now be essential, rather than merely best practice, for applicants to ensure that they have obtained the consent in writing of all landowners prior to the making of an application, and for consent authorities to check that the consent in writing has been provided. This is especially so given the owner’s consent is an essential prerequisite to a consent authority’s power to determine a development application: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [95].

The requirement for written consent will not apply to development applications lodged prior to 1 January 2023: Amendment Reg sch 1, item 24.

Complying development certificate provisions

Section 129A of the EPA Reg makes provisions in relation to a design statement for industrial and business buildings under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘Codes SEPP‘).

The Amendment Reg replaces sub-section (1) and adds new sub-sections (1A) and (1B).

  • Sub-section (1) extends the coverage of this section to applications for a complying development certificate for complying development made under Part 5A of the Codes SEPP (the Industrial and Business Buildings Codes) relating to development for a specified purpose on land in the E3 Productivity Support zone, as well as Zones B5, B6, and B7, which had already been provided for.
  • Sub-section (1A) provides that the section does not apply to an application for a complying development certificate for development involving only a change of use of the premises or internal alterations to a building (or both).
  • Sub-section (1B) clarifies that a design statement must accompany an application to which this section applies.

Furthermore, s 137 of the EPA Reg has been amended to require a new form of report. This section deals with compliance with the Building Code of Australia in the issue of complying development certificates.

A new sub-section, (3A), prohibits certifiers from issuing a complying development certificate for development comprising internal alterations or a change of use to an existing building subject to a performance solution under the Building Code of Australia unless the certifier has obtained or been given a ‘compliance report‘ for the development. A ‘compliance report‘ is defined in sub-section (6) as a report: ‘(a) prepared by a relevant registered certifier, other than the certifier issuing the complying development certificate for which the report is required, and (b) confirming that the development is consistent with the performance solution report for the building involved in the development‘.

Other amendments

Older development applications and modifications subject to court proceedings

For development applications and modification applications subject to proceedings in the Land and Environment Court which were submitted but not finally determined before 1 March 2022, the previous regulatory requirements to use the NSW Planning Portal no longer apply.

We expect this amendment to resolve some of the more practical, technology-related problems encountered by court users in respect of these older applications in having to deal with the Planning Portal.

Delayed commencement of new notice requirements

The Amendment Reg has also amended section 2 of the Environmental Planning and Assessment Amendment (Notice Requirements) Regulation 2022, delaying its commencement from 23 December 2022 to 30 June 2023.

This Regulation will require certain consent authorities to notify particular determinations of development applications and reviews in the form approved by the Secretary of the Department of Planning and Environment, unless the notice is in relation to State significant development or Crown development.

Other amendments

The EPA Amendment Reg makes further miscellaneous amendments to the planning legislation. These amendments can be viewed in full here.

If you have any questions about this post, please contact Megan Hawley on (02) 8235 9703.