Changes to Environmental Planning and Assessment Act

An amended and completely reorganised version of the Act commenced operation on 1 March 2018. Amongst the myriad innocuous changes were some very significant changes that developers need to prepare for, including:

  • Phasing out of Interim Occupation Certificates from 1 September 2018. This change applies to existing development consents, meaning that from 1 September 2018 developers can only obtain an “occupation certificate” for a completed building or part of a building. This change is likely to lead to significant delays in the realisation of returns for a developer, and may have broad ranging implications for a developer’s commercial arrangements. The implications will vary from developer to developer, and it warrants a case by case consideration and risk management response.
  • The new power for a court to invalidate a construction certificate on the ground that it is not consistent with the development consent. Previously the court could not invalidate a construction certificate on this ground, so if a certifier approved some changes between the development consent and construction certificate plans, a developer was safe from challenge. This change means that developers will now need to consider lodging modification applications if they want to vary the development consent details at the construction stage. This change also applies to existing development consents and existing construction certificates.
  • Complying Development Certificates will be subject to a greater risk of challenge and can now be subject to deferred commencement conditions – but there is no right of appeal in relation to the satisfaction of deferred commencement conditions, as there is with deferred commencement conditions on development consents.

It is important that developers are aware of the above changes and how they may affect current projects. Developers need to act quickly to put strategies in place to minimise the potential adverse impacts of these sudden legal changes.

SEPP70 Affordable Housing Contributions extended to 5 additional council areas

The government announced on Friday (20 April) that SEPP70 will be extended to enable the following 5 councils to impose conditions requiring the dedication of land or the payment of a monetary contribution toward affordable housing:

  1. Randwick City
  2. Inner West
  3. Northern Beaches
  4. City of Ryde
  5. City of Canada Bay

These councils will first need to amend their LEPs before these types of condition can be imposed.

The imposition of a condition requiring a contribution toward affordable housing will be in addition to normal development contributions. The extension of SEPP70 will therefore increase the cost of development in these locations.

Each of these councils prepared draft affordable housing policies before requesting inclusion in SEPP70. Developers with prospective projects in these council areas who wish to know more about how the extension of SEPP70 may affect them should review the relevant council’s draft policy.

Minimum strata subdivision lot size

Changes to the Standard Instrument LEP are expected imminently to rectify the application of minimum lot size provisions to strata lots, which occurred as a result of the court decision in DM & Longbow Pty Ltd v Willoughby City Council (2017) NSWLEC 173.

We have had several clients impacted by the poor drafting of this provision, and the court decision, including the client featured in this Daily Telegraph article about the issue.

The result of the Court’s reluctant interpretation of this provision was that the minimum lot size applied for the purpose of torrens title subdivision also applied to strata lots. This has the result of effectively prohibiting strata subdivision in many high density residential zones, which was clearly not the intention of most councils in adopting a minimum lot size.

The imminent rectification of this issue, expected this week, will be welcome news to the development industry and councils alike