As we move quickly into 2016, Gadens takes a look at some of the key legislative changes scheduled for this year which are likely to shape future trends in development or generate regulatory action.

Collectively, it shows an ambitious reform agenda for the NSW Government and one that is aimed at promoting development across New South Wales but providing sustainability safeguards.

We look briefly at the following legislative reforms:

  • Establishment of the Greater Sydney Commission
  • Introduction of statutory regional and district strategic plans
  • Proposed new coastal legislation
  • The new Strata Schemes Development Act 2015
  • A possible ‘Biodiversity Protection Act‘

Establishment of the Greater Sydney Commission

On 27 January 2016, the Greater Sydney Commission was officially established and given functions under the Greater Sydney Commission Act 2015.

The Act has been widely supported as laying a foundation for effective strategic planning for Sydney.

The Commission is a new planning body with important functions in plan-making and development assessment for the Greater Sydney area. The Greater Sydney area extends to the Hawkesbury, Blue Mountains and Wollondilly local government areas, but does not include Wingecarribee, Wollongong, Gosford or Wyong.

The Commission will have a significant role in the oversight of local environmental plans and involves the Commission taking on many of the powers that previously resided with the Minister for Planning. 

A new Sydney Planning Panel has also been established that is associated with the Commission. This Panel replaces the existing Sydney East and Sydney West joint regional planning panels.

For further detail on the role of the Greater Sydney Commission, see our earlier updates here and here.

Regional and District Plans

Related to the establishment of the Greater Sydney Commission, changes to the Environmental Planning and Assessment Act 1979 were also made in January 2016 to create a statutory regime for regional and district strategic plans.

A Plan for Growing Sydney, released in 2015, is the regional plan for Sydney. This is to be supplemented by six district plans, to be overseen in their preparation and implementation by the Commission.

Once District plans are in place, councils are required to review their local environmental plans and give effect to the relevant District plan.

Regional plans for other areas will generally be prepared by the Department of Planning and Environment.

Again, this new statutory regime has been embraced as a necessary step to coordinated and long term planning for the state which is intended to deliver better planning outcomes.

Stage 2 Coastal Reforms

The NSW Government is currently exhibiting a proposed Coastal Management Bill 2015 for public comment.

The Bill is intended to result in new legislation for management of the state’s coastline and replace the existing Coastal Protection Act 1979. It is expected new legislation would be in place by the end of this year.

Also on exhibition are documents in relation to a new ‘Coastal Management Statement Environmental Planning Policy’ and a new coastal management manual.

The new legislation does not differ significantly from the Coastal Protection Act 1979 which it will replace.  However the reforms appear better directed to sustainable coastal planning decisions, including in allocating responsibility for the financial costs of erosion protection measures.

Features of the reforms would include:

  • Mapping the NSW coastline and categorising land into four ‘coastal management areas’.
  • Requiring local councils to prepare ‘coastal management programs’ (in place of the current regime for coastal zone management plans). The programs would feed into development controls for the coastal area.
  • The Minister and the NSW Coastal Council (intended to replace the NSW Coastal Panel) will have a role in the making of coastal management programs. Other councils in the same ‘coastal sediment compartments’ will also be consulted in the preparation of coastal management programs.
  • Changes to the Environmental Planning and Assessment Act 1979 to:
    • better allow councils to undertake enforcement action for unauthorised and/or damaging erosion protection works on private and public land.
    • levy charges and obtain security for the maintenance of coastal protection works and restoration of surrounding beach

The reform package is open for public consultation until 29 February 2016.

Strata reform

The Strata Schemes Development Act2015is awaiting commencement, having passed both houses of Parliament last year. It is expected to commence in the second half of 2016. This legislation gives effect to a proposal by the NSW Government to allow the collective sale or re-development of freehold strata schemes without the unanimous agreement of all owners.

Collective sale or redevelopment may ultimately proceed with the agreement of 75 per cent of owners of strata title lots.  This legislation will provide an opportunity for developers to assess old or ageing strata developments and consider prospects for redevelopment.  

Under the new legislation, the Land and Environment Court will have jurisdiction to authorise implementation of either collective sale or implementation of a redevelopment plan. This is intended to provide a necessary level of oversight and protection for minority owners who do not agree to the proposal.

The Strata Schemes Development Act (and the related Strata Schemes Management Act 2015, also likely to commence in the second half of 2016) deals with a range of other strata-related reforms.

For further detail on the reforms, see our earlier updatehere.

A new 'Biodiversity Protection Act'

Following an independent review in 2014 of the Native Vegetation Act 2003 and the Threatened Species Conservation Act 1999, the NSW Government is in the course of preparing a new ‘Biodiversity Conservation Act’ to replace and integrate these two pieces of legislation.

It can be seen that the rationale behind the reform is to simplify the existing framework involving multiple and overlapping pieces of legislation and arguably provide pathways to development, particularly in rural area, that may previously have been assessed as ‘off-limits’.

Draft legislation was due in 2015 however is likely to be publicly exhibited sometime this year. The delay in presenting legislation to NSW Parliament is no doubt a result of the difficult negotiations with polarised interest groups.

Key features of the new legislation are likely to include:

  • integrating the assessment and approval of native vegetation clearing for agricultural development into the Environmental Planning & Assessment Act 1979
  • adoption of a single scientific method to assess biodiversity and other environmental impacts of all development in New South Wales
  • extending the Biodiversity Offsets Policy for Major Projects to all forms of development
  • exploration of ways to increase the uptake of biodiversity certification and distribute costs of the process to development proponents