New South Wales is adopting greater transparency in its planning rules with the passing of the Environmental Planning and Assessment Bill. The Bill was passed by both houses of Parliament on 15 November 2017 and is currently awaiting Royal assent. The Bill was passed without amendment meaning the new provisions will come into force in the same form they appeared in the Bill as originally introduced.

Summary

Key amendments include:

  1. new mandatory community participation requirements;
  2. increased focus on strategic planning, with the introduction of local strategic planning statements (LSPS);
  3. mandatory notification requirements in relation to development consents and approvals;
  4. extension of State infrastructure contributions and voluntary planning agreements to complying development;
  5. new powers for Courts to declare building certifications invalid; and
  6. the transfer of Schedule 6A of the Environmental Planning and Assessment Act 1979 (Act), which contains the transitional arrangement for the former Part 3A of the Act, to the Environmental Planning and Assessment Regulations 2000 (NSW) (Regulations).Other amendments include:
  7. a new requirement for infrastructure agencies to provide advice before consent is granted for development in infrastructure corridors;
  8. new requirements for local councils to review their Local Environmental Plans (LEP) every 5 years, to ensure they align with district and regional plans;
  9. new powers of the NSW Land and Environment Court to declare a construction certificate invalid if it is not consistent with the initial development consent, and to declare a complying development certificate (CDC) invalid if it does not meet development standards;
  10. modification to CDCs to allow councils to issue ‘stop work’ orders for up to 7 days while complaints are investigated; and
  11. expansion of remedies for breaches of the Act to include the recovery of profits gained from a breach, compensation and remedying damage caused.

Community participation

The Bill introduces a new Part 2, which is intended to consolidate provisions relating to planning decision-makers under the Act, as well as introducing new mandatory community participation requirements for planning authorities. Community participation plans

All planning authorities under the Act, including local councils and NSW development agencies that are designated planning authorities under the Act, will be required to develop a community participation plan which outlines how they will engage with the public in planning and development decisions.

Mandatory community participation requirements

The new Schedule 1 to the Act sets out the mandatory community participation requirements, including mandatory public exhibition periods for prescribed plans, development applications and development consents.

Mandatory reasons for decisions

Schedule 1 also introduces mandatory public notification of decisions and reasons for decisions. The notification must include:

  1. the reasons for the decision, having regard to any statutory requirements applying to the decision; and
  2. how the planning authority took community views into account when making the decision.

Decisions of Sydney district and regional planning panels, and local planning panels, are protected from automatic invalidity if they fail to comply with the requirement to publish the reasons or all of the reasons for a decision. However, there is no caveat against invalidity for a failure to adequately address how community views were taken into account.

There is also no protection against invalidity risk arising from a failure by the Independent Planning Commission (formerly known as the Planning and Assessment Commission), the Minister or Councils to comply with either requirement.

LSPS

Local councils are required to develop and publish LSPS’, separate to LEPs. The LSPS’ are intended to bridge the disconnect between regional and district plans and strategic planning at the local level, and the legal development controls within LEPs. LSPS’ are to:

  1. set out the strategic context within which LEPs have been developed;
  2. explain how strategic priorities and targets at the regional and district levels are to be given effect at the local level; and
  3. incorporate land use objectives and priorities outlined in councils’ community strategic plans.

Consents, reviews and appeals

Development consents will now be of no effect where legal proceedings challenging the validity of the approval are commenced until such time as the proceedings are determined (so as to confirm the validity of the consent) or discontinued. This is a change from the current position where development consents are valid until declared invalid. Development consents will now also only have effect on their registration on the NSW planning portal.

The Planning Secretary may now act on behalf of an approval body under other legislation, in the case of integrated development, to determine whether or not the approval body will grant the approval, or of the general terms of its approval (e.g. where the approval body fails to make a determination or there is an inconsistency between the terms or approval of two approval bodies).

Consent authorities are now also required to take into account the reasons given by a consent authority in an original grant of consent in determining a modification application.

Changes to certification provisions

The Bill consolidates provisions that regulate building and subdivision certification which are currently in Parts 4, 4A and 8 of the Act, as a result of recommendations from the independent review of the Building Professionals Act.

New provisions have also been inserted to, amongst a number of other things, enable:

  • CDCs to be issued subject to a deferred commencement consent condition;
  • the Land and Environment Court to declare a CDC invalid within three months of it being issued if the Court determines it was not authorised to be issued; and
  • the Land and Environment Court to declare building and subdivision certificates invalid if they are not consistent with the development consent.

Transfer of transitional provisions for Part 3A (including section 75W) to the Regulations

The Bill moves the transitional provisions for repealed Part 3A of the Act to the Regulations. The practical effect of this is the likely repeal of the transitional provisions altogether within the coming months. This will mean that modifications to former Part 3A approvals lodged under former section 75W of the Act (applying the “generally consistent” test) will likely need to be for “substantially the same” development as (as last modified prior to commencement of the new Regulation repealing the transitional provisions). This will necessarily result in a tightening of the ability for proponents to modify projects approved under former Part 3A. 

Implications

A transparent, simplified and consolidated planning system is essential to an effective planning and development regulatory environment. The Bill introduces amendments which assist to rationalise, consolidate and simplify various provisions relating to the administration of the Act and the planning bodies administering it, as well as increasing the Government’s focus on strategic planning.  However, there are concerns that some amendments, particularly those surrounding mandatory community participation requirements, may create new and increased risks of administrative appeals. This may impact the feasibility of projects as a result of delays and uncertainty arising from legal challenges