Posted on August 30, 2021 by Sue Puckeridge and Alex Rutherford

Proposed reforms to the Environmental Planning and Assessment Regulation 2000: Further Observations

In an earlier post, we alerted readers that 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 Reg). The Draft EPA Reg is intended to replace the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000). The new regulation is proposed to commence on 1 March 2022.

Our previous post provided an overview of some of the significant changes proposed in the Draft EPA Regulation (see here). This blog identifies some additional significant changes.

Procedures relating to development applications

The Draft EPA Reg introduces further changes to support the transition to use of the NSW planning portal.

Clause 50 of the EPA Reg 2000 currently provides for a development application to contain all the information specified in the form approved by the Planning Secretary and accompanied by the information set out in Part 1, Schedule 1. The equivalent replacement clause of the Draft EPA Reg (cl 24) no longer includes this requirement. The provisions of Part 1, Schedule 1 are instead either included in the body of the Draft EPA Reg (see cl 25 and 26) or are to be included in the approved forms.

The approved forms will need to be updated to reflect this change. DPIE has indicated that once the Draft EPA Reg is made, it will commence consultations with councils to make improvements to the approved forms on the NSW planning portal.

Assessment timeframes

Key changes to the assessment timeframes are:

  • There will no longer be any days excluded from the calculation of the assessment period. Currently, clause 107 of the EPA Reg 2000 provides that the first 2 days after the development application is lodged are not counted when calculating the assessment period. This has not been included in the Draft EPA Reg. Similarly, clause 110 of the EPA Reg 2000 has been removed, with the result that the two days following the day that a consent authority refers or notifies a concurrence authority or approval body will be included in the assessment period.
  • When requesting additional information from an applicant, consent authorities and approval bodies will be required to specify a reasonable period within which the information is to be provided (clauses 34, 40 and 44 Draft EPA Reg). Presently this is discretionary.
  • The Draft EPA Reg distinguishes clearly between a notice of determination required to be issued to an applicant (cl 78 of the Draft EPA Reg) and a notice of determination to be given to a person who made a submission (cl 81 of the Draft EPA Reg). Consent authorities will no longer be required to include a copy of any relevant plans endorsed by the consent authority in a notice of determination to a person who made a submission. Instead, a notice of determination to a person who made a submission will need to provide information on how that person may access more information about the development.

Modification applications

The Draft EPA Reg aims to provide a more consistent framework for the modification of development consents. In addition to recent changes to the EPA Reg 2000 dealing with the amendment of a modification application, a consent authority will be able to reject a modification application within 14 days of its receipt if:

  1. it is illegible or unclear,
  2. it doesn’t specify the conditions to be modified, or
  3. it doesn’t contain the information and documents specified in the approved form or required by the legislation (cl 100 Draft EPA Reg).

A specific clause dealing with the withdrawal of a modification application has been inserted (cl 101 Draft EPA Reg). Currently, the EPA Reg 2000 only contains clauses dealing with the withdrawal of development applications, applications for construction certificates and applications for subdivision works certificates.

Development applications relating to Crown land

A lessee of Crown land may make a development application relating to Crown land only with the consent of the Crown (cl 23(4) Draft EPA Reg). This clause will need to be read together with section 2.23 of the Crown Land Management Act 2016, which provides that the Minister is taken to have given consent on behalf of the Crown to a holder of a lease for certain low impact development applications (as defined in that section) over dedicated or reserved Crown land.

Complying development

Clause 126 of the EPA Reg 2000 currently provides for an application for a complying development certificate to contain all the information specified in the form approved by the Planning Secretary and accompanied by the information set out in Part 2, Schedule 1. As with the requirements for development applications, the provisions of Part 2, Schedule 1 are instead either included in the body of the Draft EPA Reg (see Part 6, Division 1) or in the approved forms.

There are a number of changes to the documents which are required to be included in an application for a complying development certificate. Some of the new requirements include:

  • Details of the site configuration, building envelope and a site plan drawn to scale (cl 107 Draft EPA Reg);
  • The maximum site coverage of the land (cl 108(3)(a)(iv) Draft EPA Reg);
  • An application for a complying development certificate for development to be carried out on land which is on the list of sites notified under section of the Contaminated Land Management Act 1997 must be accompanied by a site audit statement for the land, prepared by a site auditor under the Contaminated Land Management Act 1997 (cl 115(3) Draft EPA Reg);
  • An application for a complying development certificate for development for the purposes of a telecommunications facility or electricity power lines must be accompanied by detailed engineering plans (cl 111 Draft EPA Reg).

Existing Uses

The clauses relating to existing uses are primarily unchanged.

Clause 41 of the EPA Reg 2000 currently provides that an existing use must not be changed unless that change, among other limitations, “does not involve an increase of more than 10% in the floor space of the premises associated with the existing use”. The equivalent replacement clause of the Draft EPA Reg (cl 148) replaces the term ‘floor space‘ with ‘gross floor area‘, and adopts the definition of this term from the Standard Instrument – Principle Local Environmental Plan.

Public exhibition

The Draft EPA Reg is currently on exhibition on the NSW Planning Portal. The Draft EPA Reg 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 Sue Puckeridge on 8235 9702.