Significant change ahead 5 min read
Last week, a draft bill proposing major amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act) was tabled in NSW Parliament.
While much of the planning reform this year has been targeted at boosting housing supply, this package of reform is far more wide ranging and, if passed, will affect every type of development.
In this Insight, we outline the key reforms and the practical implications for developers and industry stakeholders.
12 things you need to know
The objects of the EP&A Act will be largely rewritten, promoting productivity, housing and resilience to climate change for the first time. Significantly, a proportionate and risk-based approach to assessment will also be enshrined in the objects of the Act, intended to redirect assessments away from minor issues.
The matters a consent authority must take into consideration when determining a DA will be amended so that only the significant likely impacts of a development are required to be considered. The matters required to be considered in Part 5 assessments will also be amended, and determining authorities will be able to approach assessments in a manner proportionate to the nature and risk of the activity. While discouraging unnecessary assessment of minor impacts is welcome, these changes could open new avenues for legal challenge to decisions.
In welcome news, the HDA will become a permanent feature of the planning system, providing access to an SSD approval pathway with concurrent rezoning for large residential and mixed-use projects.
The regionally significant development pathway and Sydney district and regional planning panels will be phased out, handing determination of those DAs back to councils and local planning panels. It remains to be seen whether sufficient resourcing will be provided to councils and local planning panels to deal with largescale complex applications.
Concurrences, referrals and general terms of approval for integrated development will be centrally coordinated across government agencies by a new Development Coordination Authority. This will go further than interagency coordination, and involve a centralised decision on concurrences, referrals and integrated development with a single cohesive response from the Development Coordination Authority instead of multiple, separate ones from each agency. If effective, this has the potential to eliminate significant bottlenecks in the planning process. However, it remains to be seen how this new authority will manage obtaining other agencies' input.
A new 'targeted assessment' approval pathway will be introduced for projects the impacts of which have already been addressed through up-front strategic planning or development codes. This change is aimed at filling the gap between complying development and a full-blown DA. Minor variations to standards for complying development will also now be permitted, and will be deemed approved if the council does not make a decision within 10 days (or 20 days if the council is also assessing the CDC application). This will increase the number of projects able to utilise the CDC pathway.
A new regulation to address a recent Court of Appeal decision will clarify that a consent authority is only required to assess the environmental impacts of the development proposed by a DA, and not the impacts of any other development that will be required as a result of the subject development. Regulations may also be made declaring other factors that are or are not relevant to the assessment of a development and specifying additional non-discretionary development standards.
For certain DAs, consent authorities would be required to provide draft conditions for proponents to review, and to consider any comments. Consent authorities would also be required to impose standardised conditions of consent in certain circumstances. This will promote greater uniformity of conditions and should reduce instances of unworkable conditions. Additionally, consent authorities will have power to impose conditions that relate to 'a likely impact' of the development. This seems to be a companion piece to the new requirement that only 'significant likely impacts' must be considered. Impacts that are likely but do not meet the significance threshold could now be addressed through conditions, rather than being comprehensively assessed.
A new modification pathway will be created for modifications with no environmental impact. These modifications, as well as modifications involving minor error, misdescription or miscalculations, will need to be determined within 14 days after lodgement. Failing that, the consent authority will not be able to refuse the application.
With the goal of reducing litigation in the court, while a review is under consideration the appeal period will 'pause' and an appeal cannot not be filed. Proponents will be able to request a review by the local planning panel instead of by the relevant council. A set time period for reviews to be decided will also be imposed. Decisions of the new Development Coordination Authority will be reviewable.
With the goal of encouraging productive dialogue and reducing the number of deemed refusal appeals, the six-month time limit to commence a deemed refusal appeal will be removed, allowing proponents to file an appeal any time after the prescribed assessment period, up until the application is determined.
In response to community concern about historic 'zombie consents' that have been commenced but not completed, the power to issue a complete works notice will be expanded. This is in addition to the power of government to modify or revoke a consent, which the second reading speech foreshadows may be used where development is inconsistent with environmental planning instruments.
Next steps
The proposed reforms to the EP&A Act represent a significant shift in how development is assessed and approved in NSW. If passed, these changes will impact every type of development—from minor modifications to large-scale projects of all types.
The draft Bill is due to be debated by NSW Parliament in October. We will continue to monitor these reforms. If you would like to find out more, please contact our planning and environment team.