Posted on September 18, 2025 by Liam Mulligan 13

UPDATE – Significant reforms proposed to the EPA Act

The full text of the state government’s proposed Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025 has now been released.

In our “Alert” blog about the announcement of the Bill, we noted that the government had announced what appeared to be an ambitious and wide-ranging set of reforms but, as always, the devil would be in the detail.  Having now reviewed the Bill we set out below, by reference to the major points announced by the government, the details of the amendments proposed and our initial thoughts.

• Establishing the Development Coordination Authority, a “single front door” which will provide advice on development applications and planning proposals on behalf of all NSW Government agencies.
  • The Bill establishes the “Development Coordination Authority” (DCA) but provides that the DCA is in fact just the Planning Secretary. Under the existing EPA Act the Planning Secretary already has the ability to act on behalf of an approval body – including to grant GTAs – in some circumstances (such as where the approval body has failed to grant GTAs).
  • The DCA has a general advisory function but also steps into the shoes of the various approval bodies in respect to integrated development. The DCA is clearly intended to be more than just a middle-man – the Bill provides that it will be the DCA, rather than any particular approval body, who will determine whether approvals are given and on what terms.
  • It remains to be seen whether the centralisation of this function significantly improves assessment times. Ultimately development applications will still need to be considered and assessed in detail, in order to determine whether GTAs should be granted, as the Bill provides that in determining whether to issue GTAs, the DCA must act as if it were the relevant approval body.
  • The existing Housing Delivery Authority (HDA) is also to be statutorily established by the Bill although it does not appear that this will significantly alter its existing operations.

• Expanding Complying Development, giving councils 10 days to approve small variations on a complying development application, or have it deemed approved.
  • The Bill proposes to introduce s 4.31A into the EPA Act, which allows for the issue of “variation certificates” for CDCs. These certificates will allow a CDC to be issued with a variation to an applicable development standard, but only if the standard is one which the applicable EPI states may be varied. An EPI can also specify the nature or extent of permissible variation, or the objective which a variation may be used to achieve.
  • The regulations will make detailed provision for variations. However, the Bill provides that an application for a “variation certificate” is taken to be approved if not determined within the “prescribed period” – which is 10 days (or 20 days for a combined application for a CDC + variation certificate).
  • In addition to deemed approvals for CDCs, the Bill also introduces a similar for minor modification applications. If these applications are not determined within 14 days, the application is not deemed approved, but the consent is precluded from refusing it (although it can impose conditions, as long as those conditions do not “defeat the purpose” of the application).
  • It will be interesting to see whether these provisions – and the particularly short “prescribed periods” which have been proposed – achieve their intended effect. Where the prescribed period is so short as to almost eliminate the possibility of any proper assessment, it may be that the unintended effect of the change is in fact to produce a greater number of very quick refusals.

• Introducing a new ‘Targeted Assessment Pathway’, bridging the gap between a full development assessment and Complying Development, for types of development where strategic planning and community consultation has already taken place.
  • Proposed new Division 3A deals with “targeted assessment development” (TAD). TAD will be any development – described either by class or criteria – that is so identified by a SEPP. How it will be described in practice remains to be seen but there will be a requirement to publicise, and seek public submissions on, any such declaration prior to making it.
  • Where development is declared to be TAD the effect is significant – the matters for consideration in s 4.15(1)(b),(c) and (e) must not be taken into account. These matters include the likely impacts of the development, the suitability of the site, and the public interest. This is a remarkable restriction on the consent authority’s ability to assess proposed development. It would leave only the matters in s 4.15(1)(a) and (e) for consideration (being, terms of any applicable EPI and public submissions). It remains to be seen how the consent authority is to give more than notional consideration to public submissions on a TAD application when those submissions will inevitably raise site specific impacts which the authority cannot consider.

• Improve the standards and requirements on Development Applications (DA) to make sure planning assessments are proportionate to the scale and complexity of development.
  • Section 4.15(3) will be amended (and supplemented) so as to introduce reference to “corresponding provisions”. Where an EPI contains a non-discretionary development standard but another EPI contains a “corresponding provision” that is “less onerous”, the assessment is to be conducted by reference to the less onerous provision. It remains to be seen how this will be implemented, including what provisions are taken to be “corresponding” and more or less onerous.

• Standardise conditions to provide more certainty and speed up construction once approvals are granted.
  • The Bill provides for conditions of consent to be either prescribed by regulation, or specified by SEPP. It also provides for “model” conditions to be specified by SEPP and provides that a consent authority must impose a model condition where they exist.
  • There is a potential for a significant efficiency in the regularisation (and potentially simplification) of conditions across the state but no standard or model conditions are available yet.

• Amend the objects of the EP&A Act to include housing delivery, climate resilience and proportionality in planning decisions for the first time.
  • The objects of the Act have been updated, including notably to introduce a new objective of “proportionate and risk-based” environmental planning and assessment.

• Create a consistent approach to community consultations across the state by establishing a single, state-wide Community Participation Plan for NSW.
  • Currently each local council is required to prepare and adopt its own CPP – the Minister’s Second Reading Speech notes that there are over 100 in force in NSW with often varying and inconsistent requirements. The proposal to promulgate a Model CPP (as has been done with Codes of Meeting Practice and other policies), so as to standardise community participation across the state, is a sensible reform in our view.

• Remove the regionally significant development pathway and regional planning panels that have created unnecessary duplication and delays in planning decisions.
  • The existing regional panels, which determine applications for “regionally significant development” are to be dissolved, as “regionally significant development” is to be abolished.
  • New regional panels will be constituted, with provisions similar to those governing the existing Local Planning Panels in metropolitan areas. Notably, this may see the end of DAs being determined by the councillors of a regional area, in the same way as occurred in metro regions in 2018 with the constitution of the LPPs (although the Bill contains some flexibility and exceptions). Ultimately the practical operation of these panels will be determined by the terms of any Ministerial Direction ultimately made.
  • The Bill also allows the constitution of LPPs for 2 or more areas, which would exclude existing LPPs for the same area.

• Update appeal options and review processes to encourage disputes to be resolved outside of the Land and Environment Court.
  • It seems that relatively little has been attempted here – there is a prohibition on commencing an appeal to the Court whilst a review is underway, but it otherwise seems unlikely that the tinkering with review processes included in the Bill will do anything to materially reduce the number of appeals going to the Court.

In addition to the aspects of the Bill emphasised in the Ministerial Press Release, there are some subtle but important changes buried in the Bill including:

• A new definition of ‘development standard’
  • The Bill proposes a staggered change to this key definition. The initial change will be to replicate the existing definition, but add that any provision of EPI or regulation that is identified as a development standard will be taken to be one. In time (presumably once various EPIs have been updated to identify development standards), the definition will be amended again to provide simply that any provision so identified is a development standard.
  • This is a welcome and long overdue change as the identification of provisions as development standards has long been a vexed question and the case law is of little assistance.

• Amendments to s 4.15 of the EPA Act to restrict assessment to the ‘significant’ likely impacts of the development, and the declaration of particular matters are irrelevant to the assessment of a development application
  • Arguably the first of these amendments has a relatively minor impact – at least in a practical sense – as the assessment of likely impacts would generally already be focused on, and weighted towards, those impacts which are significant as opposed to those that are not.
  • The second change is more important. Proposed s 4.15(1A) will allow the regulations to declare matters (which would otherwise be relevant to the assessment of a DA) as being relevant or irrelevant. This is a fundamental shift away from the historical position, where it was for the consent authority to determine for itself which of the matters specified  in s 4.15(1) were of relevance in a particular case. An amendment to the EPA Regulation is proposed, to specify that the impacts of “other development” are not relevant to the assessment of a given DA. “Other development” is development not proposed in the subject DA – this appears to be a statutory override of the longstanding decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349.

• Repeal of the existing bushfire provisions in the EPA Act 
  • The Bill proposes to delete ss 4.14 and 10.3 from the EPA Act. Together, these provisions operate to identify bushfire prone land (by reference to mapping) and restrictions on the grant of development consent on such land, as well as to call up the Planning for Bushfire Protection guideline.
  • There are no replacement provisions in the Bill.
  • We consider it highly likely that these provisions – or an equivalent set of provisions – will be re-enacted elsewhere as the repeal of these provisions would otherwise be a radical alteration to the existing planning system, and incongruous with  new objective (e) of the EPA Act (proposed in the Bill), being to ‘promote resilience to climate change and natural disasters through adaptation, mitigation, preparedness and prevention‘.

The full text of the Bill is here: Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on 02 8235 9715.