The Department of Planning and Environment has published a public consultation draft Bill (Draft Bill) amending the Environmental Planning and Assessment Act, 1979 (EPA Act). This accompanies (former) Minister Stokes’ media release and plain English summary of the Government’s proposed ‘tweaks’ to the EPA Act (see our earlier summary here). Public comment on the Draft Bill is invited until 10 March, 2017.

Highlights of the Draft Bill include:

  • New mandatory community participation requirements (Schedule 2, Division 2.6): These apply to all consent authorities including the Minister and the Planning Assessment Commission (now to be renamed ‘Independent Planning Commission’). Of concern is that the requirements will be mandatory. This obligation will provide fertile ground for legal challenges to the validity of development consents and Planning Proposals. Planning authorities are to have in place, as a mandatory provision, their own community consultation plan which must have regard to specified public consultation principles. The principles are based on the premise that the community has a right to be informed about planning matters that affect it. Further, communities are to be consulted about any proposed major development before a development application is made.

  • Council consultation: The Independent Planning Commission (IPC), a Sydney district or regional planning panel cannot exercise a function that will, or might, reasonably be expected to have a significantly adverse financial impact on a council, until after it has consulted with that council. The parameters around what might constitute a significant adverse financial impact are not specified. This provision has the potential to delay panel decisions, pending necessary council consultation.

  • Public hearing requirements for the IPC: These requirements are set out in Part 2 of Schedule 2 of the Draft Bill. They are helpful but would be enhanced by a requirement for the IPC to specify that a meeting actually constitutes a ‘public hearing’ where that is the case. There are no specified natural justice requirements. Proponents continue to be at risk of not having an opportunity to adequately respond to submissions made by objectors and others, particularly those issues that arise in oral representations without prior notice.

  • Changes to the current Planning Proposal regime are in Schedule 3: These include naming authorities undertaking Planning Proposals as ‘planning proposal authorities’. The Minister or the Greater Sydney Commission can direct the Secretary of the Department to be the planning proposal authority. This can also happen in specified cases, including where a council has failed to comply with its obligations in relation to making of a proposed environmental planning instrument.

  • Review of plans: Environmental planning instruments (including LEPs) are required to be reviewed every 5 years (new s73(2)). A new obligation is proposed requiring councils to prepare a local strategic planning statement and review that every 5 years.

  • Switching off consent conditions: Updated new section 80A(4A) allows consent conditions to be imposed that cease to have effect on the issue of an authorisation under another Act. For example, where an environment protection licence (EPL) is issued by the EPA that deals with the same impact as an earlier development consent condition, the EPL can “take over” regulation of that impact. This is a positive amendment that ought to avoid inconsistency between development consent conditions and the terms of other permits and authorisations. However, the provision will only apply where a consent condition specifies that it ceases to have effect – this means it is likely to only operate for development consents granted after the Draft Bill is enacted.

  • Modifications to development consents are to be amended: Section 96 is to have a new provision requiring the consent authority to take into consideration the reasons given by the consent authority for the grant of the original development consent. Importantly an updated section 96(3A) prevents the grant of consent to a modification which seeks to authorise unlawful works already undertaken.

  • Infrastructure corridor controls: There may be valuation impacts for land designated as an “infrastructure corridor” under Schedule 5 Division 5.3. It is proposed that a SEPP may designate land to be within an infrastructure corridor for purposes such as road, rail, pipeline or other linear infrastructure. That designation cannot occur unless the land is zoned for that future purpose, is designated in a strategic plan or where concurrence of another public authority is required for development consent. Development applications within infrastructure corridors will require concurrence of specified public authorities. Where concurrence is refused, the relevant consent authority (eg council) can seek a review of the concurrence refusal.

  • Updated building certificates: Provisions relating to building certification have been consolidated. Certifiers will be able to require the issue of owners building manuals for specified types of building (Schedule 6, Division 6.27).

  • Expansion of SICs: Amendments proposed to section 93F will allow the imposition of State Infrastructure Contributions (SICs) on complying development certificates. Also, the Minister will be able to direct the method of determining the extent of the provision of public benefits to be made under a planning agreement (proposed section 93K(b)). The Minister will be able to give a direction to a council or other consent authority to impose a condition requiring a development contribution to be made or requiring a person to obtain a determination from the Secretary of the Department as to whether a development contribution is required to be made.

  • Housekeeping: Provisions relating to reviews of development consent and modification refusals have been updated and consolidated. Reviews relating to integrated development are no longer excluded. The former constraint on extensions of lapsing of development consents to one year will be removed.

  • Part 3A Repeal: Unfortunately the Draft Bill is silent on the new provisions that will apply following the complete repeal of Part 3A, leaving the ongoing operation of Concept Plan Approvals and Project Approvals and the modification process to new Regulations which are not yet available. Of particular concern here is the proposal for s75W modifications to be repealed. This is likely to mean that the ‘substantially the same development’ test which currently applies under section 96 will operate, rather than the very much more extensive modification regime available under the current s75W.

Conclusion

The Draft Bill attempts to organise the EPA Act in a more logical way, which is positive.

Opportunities missed are:

  1. to articulate the savings and transitional provisions around repeal of Part 3A; and

  2. allowing appeals or review of delayed council approval of designs of public domain areas, including roads.