Existing private schools that are registered non-government schools under the Education Act 1990 (NSW) can now carry out many forms of development without the need to lodge a development application with the local council.
Such schools will have the same flexible planning approval pathways available to them as NSW government schools as a result of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP) and an amendment to the Environmental Planning and Assessment Regulation 2000 (Regulation), both of which commenced on 1 September 2017.
These changes will provide significant time and cost savings for private schools.
Private schools as public authorities
Private schools are now prescribed as public authorities for limited purposes under the SEPP. This means that:
- An existing private school can carry out a broad range of development (set out in Schedule 1 of the SEPP) in connection with the school, as exempt development. This is in addition to other forms of exempt development that apply to existing schools in clause 38 of the SEPP.
- An existing private school is a determining authority for the purposes of undertaking an environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (Act) for development (defined as an “activity” under Part 5) that may be carried out without consent on land within the boundaries of the existing school, pursuant to clause 36 of the SEPP. Such development includes the construction of specified buildings no more than 1 storey high provided they meet specified standards, and do not:
require any alterations to traffic arrangements; or
allow for any increase in either the number of students or staff by more than 10%.
Private schools need to be aware that the Secretary of the Department of Planning and Environment may determine that a private school is not a public authority for the purposes of the SEPP. We anticipate that the Secretary may do this if a private school fails to comply with the specified standards that apply under the SEPP or the NSW Code of Practice for Part 5 Activities for Registered Non-Government Schools made by the Minister for Planning under the Regulation, and published in the New South Wales Government Gazette on 1 September 2017 (Code).
Environmental impact assessment under Part 5 of the Act
As a determining authority under Part 5 of the Act, a private school must, in its consideration of an activity, examine and take into account all matters affecting or likely to affect the environment by reason of the activity, including but not limited to any environmental impact on the community; any reduction of the aesthetic, recreational, scientific or other environmental quality or value of the locality, and any long term-effects on the environment.
In practice, the assessment by a determining authority is undertaken by way of a review of environmental factors (REF), or an environmental impact statement (EIS) where the activity is likely to significantly affect the environment. Given the types of development that can be carried out without development consent under the SEPP, it is anticipated that in most cases, an EIS will not be required and an REF will be appropriate.
The Code is binding on private schools when undertaking activities without development consent under the SEPP. A breach of the Code is an offence.
The Code includes mandatory provisions with respect to undertaking an assessment under Part 5 and documenting that assessment, pursuant to an REF.
Notification and consultation requirements
The Code also includes mandatory notification and consultation requirements. The REF must be made available on the school’s website and a copy is to be provided to the local council.
The SEPP also imposes an obligation to give written notice to the local council of its intention to carry out the specified forms of development and to take into consideration any response by the local council received within 21 days after giving notice.
Further consultation obligations with other authorities may apply depending on the nature of the development and its location e.g. if the school site is on bushfire prone land, there is an obligation to notify and consult with the NSW Rural Fire Services.
Flexible planning approval pathways now available
In addition to providing for exempt development and development that may be carried out without development consent, the SEPP also includes provisions for complying development and development that requires development consent.
Depending on the works proposed to be carried out, it may be possible for a private school to carry out various components of a development project as:
- exempt development that can be carried out without any approval or assessment if specified standards are met;
- development without consent, requiring an REF under Part 5 of the Act;
- complying development, in accordance with a complying development certificate; or
- development that requires consent under Part 4 of the Act, in accordance with a development consent.
Addisons can assist private schools in understanding the planning approval pathways available for their projects and how they can structure the carrying out of development to minimise red tape and take advantage of the flexibility that the SEPP now provides them.
We can also review and advise private schools and their consultants on REFs.