Client Update: Proposed reforms to staged development applications in NSW
5 July 2017
In brief: The NSW Government has proposed amendments to planning legislation that aim to provide certainty of outcomes for both developers and the public. Partner Paul Lalich , Senior Associate Dennis Smith and Law Graduate James Higgins report.
The NSW Government has released draft amendments to clarify the 'staged development' provisions of the Environmental Planning and Assessment Act 1979. The amendments allow for a minimum two-stage process, comprising a development application for initial concept-level approval, followed by one or more detailed development applications of the site.
The amendments respond to the recent decision of the NSW Court of Appeal in Bay Simmer Investments Pty Ltd v State of New South Wales  NSWCA 135. The Court of Appeal declared a development consent granted to a staged development application invalid, as the application did not commit with any certainty to the making of more than one subsequent detailed development application and did not specify the separate parts of the site that would be the subject of subsequent applications.
The court held that staged development requires the making of at least two or more detailed development applications for specified parts of a site, following the initial application seeking concept-level approval. That the application for concept-level approval also seeks approval for Stage 1 development does not change this requirement.
The staged development provisions were introduced to enable the grant of a high-level concept approval for development, providing early certainty of outcomes for developer and public alike. Subsequent development applications cannot be inconsistent with the initial concept approval. Whether one or more subsequent detailed applications was proposed was a matter to be largely determined by the developer.
The decision in Bay Simmer highlights the importance of flexibility in planning legislation and the extent to which unnecessary prescription can undermine provisions intended to achieve that purpose.
The Department of Planning has prepared a draft Bill that:
- renames staged development applications as 'concept development applications', to better reflect their practical role in the planning process;
- clarifies that proponents will only be required to submit one further development application following approval of a concept application, rather than the two or more applications currently required as confirmed by Bay Simmer; and
- makes clear that the impacts of carrying out the development need not be considered in the assessment of a concept application (when such information is not necessarily available), but must be considered when approval to carry out development work is sought.
The Government has invited submissions on the draft amendments. The period for submissions ends on 24 July 2017.
We will provide further updates on the progress of the amendments.
- Naomi BergmanManaging Associate,
Ph: +61 2 9230 5646
- Dennis SmithSenior Associate,
Ph: +61 2 9230 4432
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