AUGUST 2008

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Reforms to the NSW planning system - the Environmental Planning and Assessment Amendment Act 2008

The Environmental Planning and Assessment Amendment Act 2008 (NSW) (New Act), which commenced on 23 July 2008, instils a number of significant changes to the Environmental Planning and Assessment Act 1979 (NSW) (Act).

These changes are summarised as follows:

  1. Environmental Planning

    • There will be no more regional environmental plans (REPs).

    • The Minister for Planning now wields substantial control in the process of making local environmental plans (LEPs). The Minister is given the discretion to decide the progress of an LEP by making a “gateway determination” in relation to the LEP, including whether the proposal should proceed, what community consultation is required (if any) and whether consultation with public authorities is required.

    • The NSW Governor is given a very broad power to make state environmental planning policies (SEPPs). Formerly, a SEPP could only be made in accordance with a recommendation from the Minister and the SEPP must have related to matters that are, in the opinion of the Minister, of significance to environmental planning for NSW.

  2. Development Assessment

    • Formerly, development applications were determined by local councils or the Minister but the New Act creates new planning approval bodies, each of these having defined duties and functions as follows:

      1. The Planning Assessment Commission’s main role is to determine major project applications (under Part 3A (Major Infrastructure and other Projects) of the Act). It will also have an advisory role to the Minister.
      2. As the name suggests, regional planning panels will act as the decision-makers for regionally significant development applications.
      3. Independent hearing and assessment panels:  IHAPs are not a new concept to planning law as many councils have used the expertise of various IHAPs to assess development at various times.  IHAPs will be established by councils to advise and hear submissions on certain local development applications.
      4. Planning arbitrators will determine appeals from local councils for smaller-scale development proposals.

    • “Complying development” will be increasingly used as a form of assessment and approval to enable more certification style approvals for small developments such as individual residential and small commercial/industrial.

  3. Development Contributions

    • Development contributions will be increasingly regulated by the creation of criteria to determine the setting, levying and spending of contributions (such criteria include reasonableness and affordability).

    • There will also be further restrictions limiting the levying of local contributions.

  4. Certification of Development

    • The New Act aims to strengthen the enforcement measures associated with the private certification of development and planning laws.  Accordingly:

      1. a private certifier is required to issue directions to a developer if the certifier becomes aware of non-compliance with a development approval;

      2. additional design and other pre-requisites apply to the issue of a Part 4A (certification of development) certificate;

      3. local councils have increased investigatory and on-the-spot enforcement powers; and

      4. a consent authority can require construction “compliance bonds” for all conditions of development consent.

Objective of Reforms

The Minister’s media release on 15 May 2008 stated that the reforms created by the New Act as well as the Building Professional Amendment Act 2008 “will create an efficient and transparent planning system for the 21st century - introducing independent decision-making and streamlining processes for working families”.

These planning reforms will affect almost every aspect of development control.  The New Act proposes significant changes to the process and time-frames for making planning instruments; the allocation of responsibility for controlling development proposals and time-frames for decision-making; the way in which development contributions are planned and imposed; and the certification of development in the existing Act.

Whilst the expressed object of the reforms is to streamline processes (and it is hoped that the objectives are realised in practice) much of the detail concerning implementation of the new regime is to be contained in Regulations.  The reforms introduce a number of new levels of assessment approval bodies as well as new categories of development.  The industry cannot be certain of how the regime will operate in practice until the suite of reforms is complete.  At the time of press, the Department of Planning has yet to indicate when the Regulations will be made.  Indeed a timetable for draft Regulations is yet to be released by the Department.  It is these Regulations that will dictate whether the reforms actually achieve the objectives. 

Perhaps the most certain aspect of the reforms to date is that “the devil will be in the detail”.  Undoubtedly, the property industry will scrutinise the operation of the reforms closely over time when the suite of reforms is complete and operational.

 

Written by Candice de Bressac