Posted on March 20, 2023 by Sue Puckeridge and Emma Wei 11

New planning controls to encourage the installation of electric vehicle charging units in NSW

According to the NSW Electric Vehicle Strategy (2021), electric vehicle sales are projected to increase to 52% of total vehicle sales by 2030-31, making it crucial to establish more electric vehicle charging locations across the state. To address the likely increase in demand and to facilitate the installation of electric vehicle supply equipment used to charge the batteries of electric vehicles (EVC Units), the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP (T & I)) has been amended.

The new controls are found in subdivision 3 of Division 17 of SEPP (T & I).  This subdivision sets out the circumstances where EVC units will be permissible with or without consent. Insofar as private persons can seek development consent to install an EVC Unit on public land, the new controls raise some interesting issues.

Development with or without consent

Public authorities

Public authorities or a person acting on their behalf may install an EVC Unit without development consent on land owned or controlled by a public authority provided specified criteria are met, including that the EVC Unit:

• is to be installed on a footpath adjacent to legal parking areas;
• is not installed on an existing building such as existing street furniture, an electricity substation or lightpole;
• does not obstruct vehicular, cyclist or pedestrian access or movement along a cycleway/footpath; and
• does not interfere with firefighting hydrants or fire protection equipment.

Electric Supply Authorities and Public Authorities

Electric supply authorities or public authorities can install an EVC Unit (other than an advertising enabled EVC Unit) with development consent if specified criteria are met, including that the EVC Unit does not:

• obstruct vehicular, cyclist or pedestrian access or movement to or from a building or along a cycleway/footpath; and
• interfere with firefighting hydrants or fire protection devices.

Any Person

Any person can install an EVC Unit with development consent on ‘relevant public land‘ (defined to be land which immediately adjoins a public road and is adjacent to residential premises) if specified criteria are met. Prior to granting development consent, the consent authority must be satisfied that the EVC Unit is for the non-commercial use of owners or occupiers of adjacent residential premises and will be connected to that owner or occupier’s electricity meter.

The criteria that must be met include that:

• the EVC Unit is to be installed adjacent to legal parking areas; and
• the EVC Unit must be fully retractable underground when not in use and all cables must be located underground.

Any person can erect a building for recharging or exchanging the batteries of electric vehicles on land adjoining a public road in a prescribed zone or on which there is an existing service station, highway service centre or car washing facility with development consent.

Exempt development

Sections 2.124D  – 1.124F set out the circumstances when the installation of an EVC Unit will be exempt development.

Provided section 2.20 of SEPP (T & I) and the other criteria specified in the relevant sections are met:

• public authorities can install an EVC Unit on an existing piece of street furniture. Street furniture is given a wide inclusive definition under s 2.123 of SEPP (T & I). It includes parking meters, telephone booths, rubbish bins, planter boxes, street signs, benches, or bollards but not lighting or electricity poles or bus stops.
• electricity supply providers or a public authority can install an EVC Unit on existing electricity or lighting poles provided the unit does not contain batteries capable of storing more than 1kWh of energy; and
• any person can install an EVC Unit in bus depots, car parks (commercial, public, or private), car washing facilities, road maintenance depots, service stations, highway service centres, and public administration buildings.

Impact on Public Roads and Section 138 of the Roads Act

Generally the public road commences at the front boundary of a private lot of land. As such, it is unclear what land is intended to be caught by the phrase ‘land which immediately adjoins a public road‘ in SEPP (T & I). It would appear to be a reference to the road verge and not the road pavement on which vehicles travel, but this is not clear.

If this is the case, then the verge will still be part of a public road and the requirements of the Roads Act 1993 (Roads Act) must still be met. As such, consent from the relevant roads authority under s 138 of the Roads Act to install the EVC Unit would be required both to construct and maintain the EVC Unit.

Even if this is not the case, the installation of a private EVC Unit on land adjacent to residential premises will effectively result in the same private user occupying, or seeking to occupy, the same space on a public road for extended periods of time. In areas where parking is at a premium, it remains to be seen what impacts this may have on street parking. We note that the recent introduction of section 203B of the Road Rules 2014 introduced fines of up to $2,200 for drivers who are not in an electric powered vehicle to stop in spaces designated for electric vehicles and section 203C provides that drivers of electric charged vehicles can only stop in those spaces for the purposes of charging their vehicle. The effect of such signage will inevitably reduce general parking on a street and may impact on whether a roads authority is willing to grant the consent under the Roads Act.

Conclusion

The amendments to SEPP (T & I) are an important change to the regulatory landscape supporting the use of electric vehicles in NSW.  The extent to which householders will benefit from them remains to be seen.

The State Environmental Planning Policy (Transport and Infrastructure) Amendment (Electric Vehicles) 2023 can be found here.

The NSW Government Department of Planning and Environment’s Factsheet on Electric Vehicles, providing further information on the planning provisions and frequently asked questions related to installing EVC units, can be found here.

If you wish to discuss anything in this blog, please leave a comment below or contact Sue Puckeridge on 02 8235 9702 or Emma Wei on 02 8235 9725.