Posted on August 9, 2021 by Megan Hawley and Alex Rutherford 20

ALERT: Exhibition Draft of the Proposed Environmental Planning and Assessment Regulation 2021

On 5 August 2021, the Department of Planning, Industry and Environment (‘DPIE’) released for public consultation the draft Environmental Planning and Assessment Regulation 2021 (‘Draft EPA Regulation‘), which is intended to replace the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation 2000‘). The new regulation is proposed to commence on 1 March 2022.

The Draft EPA Regulation has been developed by DPIE in consultation with stakeholders, and following community feedback received in response to the ‘Review of the Environmental Planning and Assessment Regulation 2000′  issues paper released in September 2017.

This blog provides an overview of some of the significant changes proposed in the Draft EPA Regulation. We will be reviewing the Draft EPA Regulation and commenting on the proposed changes in more detail in further blogs.

We note that the Draft EPA Regulation does not reflect the changes proposed to be made to the Environmental Planning & Assessment Act 1979 (EPA Act) by the Environmental Planning and Assessment Amendment (Infrastructure Contributions) Bill 2021, which we blogged about here.

Summary of the draft Environmental Planning and Assessment Regulation 2021

The Draft EPA Regulation generally retains the provisions of the EPA Regulation 2000, while making amendments intended to:

• reduce administrative burden and increase procedural efficiency,
• simplify the planning system, and
• establish a modern and transparent planning system.

Development Assessment

The Draft EPA Regulation will update the development application (‘DA‘) requirements which is intended to improve the quality of applications and reduce administrative burden. It will require all DAs to be made in an approved form located on the Planning Portal, with all of the requirements currently set out in Schedule 1 of the EPA Regulation 2000 to be integrated (and updated) into the approved form.

Amendments are also proposed to be made to simplify the stop the clock, concurrence and referrals provisions, as well as simplifying the post-determination notification requirements.

Designated Development

The Draft EPA Regulation revises the categories of development that are designated development to include certain emerging technologies and to exclude a number of lower risk activities. Certain designated development thresholds are also amended to align with the equivalent thresholds under the Protection of the Environment Operations Act 1997.

The amendments also update the location-based criteria for designated development.

Complying Development

The Draft EPA Regulation will require additional information to be included in complying development certificate (‘CDC‘) applications, including details of the site configuration and building envelope, engineering plans for telecommunications or electricity works, a site plan and the maximum site coverage of the land.

It will also require 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, with all CDC’s approved for such land required to provide a condition that any relevant site audit statement requirements must be complied with.

Infrastructure and Environmental Impact Assessment

The Draft EPA Regulation will update clause 228 of the EPA Regulation 2000 to clearly reference a ‘review of environment factors’, reflecting the widely used phrase, and to distinguish the process of the initial review and assessment under clause 228 from the process of preparing an environmental impact statement. The determining authority under Division 5.1 of the EPA Act will be required to prepare a report demonstrating how the relevant factors were taken into account when considering the likely impact of an activity, and to publish the report on their website where the development meets specified thresholds.

Planning Certificates

The Draft EPA Regulation makes amendments to the matters to be included in section 10.7(2) certificates, making updates to and reordering the list of matters found in Schedule 4 of the EPA Regulation 2000. The additional matters to be included on planning certificates include:

• draft development control plans, unless the draft has not been made within three years from the date it was last on public exhibition;
• information on all State Environmental Planning Policies that zone land or include land within a designated area;
• whether the land is in a special contributions area;
• whether any draft contributions plans apply to the land.

The Draft EPA Regulation will also add contamination, aircraft noise, salinity, coastal hazards and sea level rise to the list of hazard risk restrictions which are currently noted in clause 7 of Schedule 4 of the EPA Regulation 2000.

Public exhibition

The Draft EPA Regulation is currently on exhibition on the NSW Planning Portal. The following documents have been published as part of this exhibition:

• the proposed Environmental Planning and Assessment Regulation 2021;
• the Regulatory Impact Statement;
• the following fact sheets summarising key changes:
  • ‘Overview of proposed 2021 EP&A Regulation‘,
  • ‘Designated development‘,
  • ‘Development Assessment and Complying Development‘,
  • ‘Planning certificates‘,
  • ‘Infrastructure and environmental impact assessment‘,
  • ‘Response to 2017 issues paper submissions‘.

The Draft EPA Regulation can be viewed here. The remainder of the supporting documentation, and the submission portal, can be viewed on the Planning Portal here. The deadline for submissions is Wednesday, 22 September 2021.

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