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Focus: The NSW Planning Bill 2013 – Part IV – appeals and enforcement

19 November 2013

In brief: In this fourth and final article in our series providing commentary on the NSW Planning Bill 2013, Partner Paul Lalich and Senior Associate Trent March discuss the appeals and enforcement provisions in the Bill that was recently introduced into Parliament.

How does it affect you?

  • The transitional provisions for the Planning Bill have now been released. Most applications pending at the commencement of the Planning Act will continue to be assessed under the Environmental Planning and Assessment Act 1979 (the EPAA).
  • Despite language to the contrary in previous drafts of the Bill, the NSW Government has confirmed that legal rights of appeal and judicial review will not substantially change.
  • Offences will be categorised into a tiered system and new maximum penalties will be introduced.

Appeals

Following the release of the White Paper and exposure draft of the Bill, there was uncertainty whether the full suite of appeal and judicial review rights, currently available under the EPAA, would be retained. The Government's expressed intention was to do so. However, the exposure draft of the Bill proposed to limit third-party appeal rights in a number of areas, including the right to challenge the making of a planning instrument and the declaration of public priority infrastructure. The NSW Law Society's submission on the exposure draft of the Bill identified the inconsistency and the Government confirmed in response that the Bill would be re-examined.

The Planning Bill now largely retains the existing appeal and judicial review rights. A ministerial declaration of public priority infrastructure can be challenged up until the point a project definition report is published on the NSW Planning Portal (this provision in fact appears wider than that currently applying to critical State Significant Infrastructure). Merit appeal rights for objectors and applicants will continue unchanged. Objector appeal rights for development subject to Environmental Impact Assessment will be the same as the current appeal rights for designated development.

It is proposed to extend the application of the existing 'fast track' mandatory conciliation-arbitration processes of the Land and Environment Court to a wider range of appeals. Further, despite concern expressed during the consultation period, including by the Law Society, about whether it would in fact facilitate just outcomes, a 'very fast' track of appeal will be introduced for single dwellings and dual occupancies, and parties will be allowed to opt-in or opt-out of the very fast track procedure according to the nature of their dispute.

Enforcement

Environmental offences will be categorised in tiers, according to their severity. Maximum penalties will be increased for the first time since 1999. The proposed maximum penalty thresholds for tier 1 offences (those involving environmental harm, death or serious injury) will be $5 million for a corporation and $1 million for an individual.

Transitional provisions

The Bill introduced to Parliament contained transitional provisions not in the exposure draft of the Bill. In summary:

Environmental planning instruments
  • Existing LEPs and SEPPs will remain in force as deemed planning control provisions of the relevant Local Plan.
  • Existing DCPs will remain in force as deemed development guide provisions of the relevant Local Plan.
  • If a draft environmental planning instrument or DCP exists at the commencement of the Planning Act, the provisions of the EPAA will continue to apply to this draft for a period of three years.
Development applications

The provisions of the EPAA will continue to apply to:

  • development applications (or modification applications) lodged before the commencement of the Planning Act;
  • applications for State Significant Infrastructure (or modifications to existing approvals) lodged before the commencement of the Planning Act;
  • activities regulated under Part 5 of the EPAA, where an environmental impact assessment was pending under that Part on the commencement of the Planning Act;
  • draft Voluntary Planning Agreements that had been publically notified before the commencement of the Planning Act;
  • any appeals to the Land and Environment Court that are pending on the commencement of the Planning Act; and
  • any reviews under the EPAA of any decisions made by any authority that are pending on the commencement of the Planning Act.

Commentary

In the language of the Green Paper, released more than two years ago, the new planning system proposed 'transformative change' to the planning system in NSW. The State Government's consideration of the new system included the review of more than 4500 submissions on the White Paper and the exposure draft of the Bill.

While some of the changes originally proposed have been abandoned or altered in response to public submissions, it is still fair to describe the Planning Bill as the most significant reform of the planning system to occur in the past 30 years. The focus on strategic planning, the elevation of economic outcomes in the planning principles described in the Bill, and the introduction of code assessable development are a clear policy driven departure from the current regime.

The Bill is currently awaiting second reading in the Upper House. We will monitor its progress and provide updates on any substantial amendments and upon its passage into law.

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