Posted on October 30, 2013 by Stuart Simington

Planning Bill 2013 – Savings & Transitional Arrangements

This post outlines the framework for the transition to the new planning system under the Planing Bill 2013 (Bill). The framework seems designed to enable the Bill to be commenced quite quickly utilising the existing planning framework where necessary. In particular  the assessment of pending applications and other processes will be able to continue under the existing framework.

The transitional arrangements also provide the Minister with significant and unfettered scope to adopt policies without consultation which impact on what constitutes permissible development.

• Generally – Subject to any contrary intention, references to the EPA Act or provisions in Acts or instruments will be taken to be references to corresponding provisions of the Bill or Planning Administration Bill once made. [Sch 12 Item 12.2] Things in force and done under the EPA Act that could have been done under the Bill will be taken to have been done under the Bill. [Sch12 Item 12.33]

• Community Participation Plans – A Model Community Participation Plan is to be made by the Minister. The Model Plan will apply as a council’s plan until the council prepares its own plan [under  cl2.4 of the Bill] or  30 June 2016, whichever occurs first [Sch 12 – Item 12.4]

• Strategic Documents generally – The Minister may adopt any document made or prepared under the former Act or in anticipation of the Bill as a ‘strategic plan’ other than a local plan.  The provision therefore allows  NSW planning policies, regional growth plans and subregional delivery plans to be adopted by the Minister and to have the force given to those plans under the Bill without any public consultation. [Sch 12 Item 12.5]

• Existing SEPPs – Existing SEPPs will be planning control provisions of a local plan unless the local plan excludes them. [Sch 12 – Item 12.6]
  • The controls in SEPPs relating to exempt or complying development are taken to be development code provisions of the local plan.
  • The Minister can issue an order adding to or omitting provisions of the SEPP which apply. This power is not subject to any express fetter or requirement for public notice.

• Existing LEPs (including deemed EPIs) – These are to be treated in much the same way as SEPPs. That is, LEPs  will be taken to be planning control provisions of the local plan unless the local plan excludes them. [Sch 12 – Item 12.7] Nevertheless,  deemed EPIs (such as planning scheme ordinances) will cease to apply after three (3) years of commencement of the Bill.

• Existing DCPs – Are taken to be development guide provisions of the local plan except as provided by the local plan [Sch 12 – Item 12.8]

• Draft plans and planning proposals – The current plan making procedures under the EPA Act will continue to apply for three (3) years in relation to existing processes. [Sch 12 -Item 12.9]

• Existing consents– Will be taken to be development consents granted under the new Act. [Sch 12 -Item 12.10]

• Pending development applications and modification applications – The EPA Act will continue to apply to the determination of pending applications. [Sch 12 -Item 12.10]

• Part 5 of the EPA Act – The provisions of the EPA Act will continue to apply to environmental impact assessment of an activity pending on the commencement of the new Act. The determination under Part 5 of the EPA Act following such assessment will be taken to be  a determination made under Part 5.1 of the Bill. [Sch 12 – Item 12.11]

• State significant infrastructure applications and approvals – Pending applications for approvals or modifications will be dealt with under the provisions of the EPA Act. The determination of those applications  will be taken to be  determinations under Part 5.2 of the new Act. [Sch 12 – Item 12.12]

• Existing Contributions Plans (CPs) – Existing CPs are taken to be a local infrastructure plan of the Council and the contributions provisions of the local plan until relevant contribution provisions are included in the local plan.  Nevertheless, the former CPs will only apply  in so far as they provide for the imposition of ‘local infrastructure contributions‘. [Sch 12 – Item 12.13]  ‘Local infrastructure contributions‘ are limited to local roads, local drainage works, open space and community facilities (see cl7.1). Contributions for contributions for other infrastructure authorised by the EPA Act and the CP can still be imposed until contribution provisions are included in the local plan.

• Draft Contributions Plans – The Bill provides that the provisions of the EPA Act will continue to apply for three (3) years to draft CPs in existence on the commencement of the Bill. It is not entirely clear what a ‘draft’ contributions plan is and to what stage the preparation of a plan must have progressed in order for it to be subject to the provision. It seems that a draft CP that a Council has resolved to exhibit would be such a plan, although there is also an argument that it could cover even more preliminary work towards such a draft. Once made, such a CP will then be treated in the same way as existing CPs as described above.

• Special Infrastructure Contributions – SIC directions and determinations under the EPA Act are taken to be provisions of growth infrastructure plans and the contributions provisions of local plans in so far as they require regional infrastructure contributions. Until contribution provisions are incorporated in the local plan, contributions for regional infrastructure are to be imposed even if not of a kind authorised to be imposed under the Bill. [Sch 12 Item 12.14]

• Planning Agreements (VPAs) – Existing VPAs will be taken to be VPAs under the Bill. The existing procedures under the EPA Act will continue to apply to VPAs that are in the course of preparation but only if they have been publicly notified before commencement of the Bill. [Sch 12 Item 12.15]  This corollary of that is that VPAs in the course of  negotiation when the Bill commences will need to be redrafted to conform with the Bill and any regulations that are made [see Sch 7 cl7.2]

• Existing conditions of development consent – The Bill provides that the existing conditions are not affected by the commencement of the Bill [Sch 12 Item 12.18(1)].

• Affordable Housing Schemes – As was indicated in the White Paper, existing schemes established under an environmental planning instrument continue in force and contributions may continue to be imposed under Division 6A of Part 4 of the EPA  Act in relation to these. [Sch 12 Item 12.18(2)]

• Part 4A certificates – An existing Part 4A certificate is taken to be a certificate issued under Part 8 of the Bill.  Pending applications for a certificate are to be dealt with under the EPA Act.  [Item 12 Item 12.20]

• Reviews and appeals – Pending reviews and appeals are to be dealt with in accordance with the law in force immediately before the commencement of the Bill. This seems to have the consequence that amendments to local plans, SEPPs etc occurring after the Bill commences will not apply to such applications. [Sch 12 Items 12.21 and 12.22]

The Bill contains provision enabling further savings and transitional provisions to be made by Regulation (see cl11.3). Any such provision of the regulations will have effect despite anything to the contrary in Schedule 12 and the regulations may also make separate savings and transitional provisions  or amend Schedule 12 to consolidate the savings and transitional provisions. Therefore the arrangements outlined above may change during the implementation of the Bill once made.