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Australia – New Land Use Planning Legislation for NSW.

30 October, 2013

What Has Happened?


On 22 October 2013, the NSW Government introduced into Parliament the Planning Bill 2013 (Planning Bill) and the related Planning Administration Bill 2013 (Planning Administration Bill).


These Bills constitute the most significant change to land use planning legislation in NSW since 1 September 1980 when the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) came into effect. 


Who Needs To Know?


Anyone interested in land use or development in NSW. 


Some Details


The Planning Bill retains the general structure and approach of the EPA Act but alters many of its details. The principal points of difference – and spaces to watch – are these: 


A. Repeal And Transition Of The EPA Act


Because the Planning Bill will repeal the EPA Act, its transitional provisions will be very important.


The bulk of the transitional provisions have yet to be released, but the Planning Billcontains transitional provisions for both:


  • development consents granted under the EPA Act, and
  • Part 5 determinations made under the EPA Act.

The Planning Bill does not, as yet, contain any transitional provisions for Part 3A approvals. It is to be hoped that the current transitional provisions contained in Schedule 6A of the EPA Act will be continued in effect. 


B. Planning Instruments


There will now be four types of planning instrument (in place of the current three):


  • NSW planning policies,
  • regional growth plans,
  • subregional delivery plans, and
  • local plans. 

These planning instruments will have a clear hierarchy because planning authorities must give effect:


  • to NSW planning policies when preparing regional growth plans, subregional delivery plans and local plans, and
  • to regional growth plans when preparing subregional delivery plans and local plans. 

The NSW Director-General of Planning is the planning authority for the preparation of ‘NSW planning policies’ and ‘regional growth plans’. 


‘Subregional delivery plans’ will be prepared by the relevant ‘subregional planning board’ established under the Planning Administration Bill.  Details of the regions and the boards are awaited. 


‘Local plans’ will typically be prepared by local Councils, but:


  • the NSW Director-General of Planning retains authority over those aspects of local plans which deal with regional infrastructure and biodiversity, and
  • the Minister has a power to refer authority over other aspects to the Director-General or the Planning Assessment Commission (PAC). 

There will now be a requirement for local plans to contain ‘development assessment codes’ which set out development standards for development, or performance criteria for development and acceptable solutions for achieving those performance criteria. 


The Planning Bill sets out a short list of ‘general considerations’ to which a planning authority is required to have regard in preparing a planning instrument. These include:


  • that the instrument should be ‘based on evidence’, and
  • a requirement for local plans to have regard to ‘the impact [of the plan] on financial feasibility of future development’. 

C. Assessment And Approval Of Development


Basic Approval Processes Retained 


The Planning Bill retains the same assessment and approval ‘pathways’ utilised under the EP&A Act being:


  • exempt development,
  • development which requires development consent under Part 4,
  • development which may be carried out without consent subject to assessment under Part 5 (where triggered), and
  • prohibited development. 

‘Public Priority Infrastructure’


In a significant departure from the current EPA Act, the Planning Bill introduces the concept of ‘public priority infrastructure development’ which may be carried out without any planning approval under the Planning Bill subject to the prior preparation and public exhibition of a ‘project definition report’. Development may become ‘public priority infrastructure development’ only if it is so declared by a published Ministerial order. 


Part 5


Part 5 of the Planning Bill, like Part 5 of the current EPA Act, contains assessment and approval pathways for development which:

  • may be carried out without development consent, but
  • requires the ‘approval’ of a ‘determining authority’. 

Like the current EPA Act, the Planning Bill specifies that an EIS will be required for such development where it is likely to significantly affect the environment.

 

However, new provisions also give the Minister greater oversight in relation to Part 5 assessments by enabling the Minister:


  • to request the PAC to provide advice (with or without a public hearing) in relation to relevant development, and
  • to make recommendations to the relevant determining authority based on it.

Alternatively, the Minister can request the Director-General to provide advice (with or without a public hearing) in relation to relevant development, and to forward that advice to the relevant determining authority.


Part 5 also contains an assessment and approval pathway for development declared to be ‘State infrastructure development’. These provisions substantially reflect the current State Significant Infrastructure provisions contained in the Part 5.1 of the EPA Act


Part 4


Like the current Part 4 regime, the Planning Bill contemplates that development may be either:


  • ‘complying development’ (where declared to be such by a local plan), or
  • development which requires consent (including State significant development). 

The assessment process for ‘complying development’ is little different from the current one under the EPA Act. An innovation is that an applicant can apply for and obtain from the relevant local council a ’variation certificate’ to certify that any non-compliance with prescribed standards is a permissible variation. 


The consent authority for development which requires consent depends on whether the development is:


  • ‘State significant development’, in which case the consent authority is the Minister or his delegate, or
  • ‘regionally significant development’  in which case the consent authority is the relevant ‘regional planning panel’, or
  • other development, in which case the consent authority is the local Council unless another consent authority is specified. 

The assessment process is either:


  • ‘code assessment’, or
  • ‘merit assessment’. 

‘Code assessment’ means, in effect, that the consent authority cannot:


  • refuse development consent where the development complies to development standards under the applicable development assessment code, and
  • cannot impose conditions that are more onerous than relevant development standards in the code. 

‘Merit assessment’ involves the consent authority undertaking a merit assessment of the development, including of any environmental impacts on the natural and built environments. This will occur via:


  • a statement of environmental effects for most development, but
  • an ’EIS assessment’ for development declared by a local plan to be ’EIS assessed development’. 

If the development is prohibited, Part 4 now includes a procedure for making the development permissible with development consent subject to the issue of a ‘strategic compatibility certificate’. Such a certificate may only be issued:


  • following an application by (or with the consent of) the relevant landowner, and
  • by the relevant ‘regional planning panel’ or, (in certain circumstances) the NSW Planning Director-General. 

An application for development consent relying on such a certificate must be made within 12 months of the issue of the certificate. The application cannot be refused, and conditions of consent cannot be imposed, except consistently with any conditions on which the certificate was issued. 


The Planning Bill contains strengthened community participation rights. In particular, consent authorities:


  • must act consistently with the ‘Community Participation Charter’ set out in section 2.1 of the Planning Bill,
  • must also prepare ‘community participation plans’, and
  • are bound by the ‘mandatory requirements for community participation’ set out in Part 1 of Schedule 2 of the Planning Bill. These include (among other things) minimum periods for exhibition of draft planning instruments, development applications and EISs. 

In addition, the Planning Bill requires the Minister to establish a Community Participation Advisory Panel which will have functions related to the preparation of ‘community participation plans’.

 

The provisions relating to modification of development consent differ slightly, but significantly, from those in the EPA Act. In particular, the ‘mandatory requirements for community participation’ set out in Part 1 of Schedule 2 of the Planning Bill require public exhibition and notification of proposals for modification.


Concurrences And Additional Approvals To Development


In much the same manner as the EPA Act, the Planning Bill lists subsidiary approvals which are not required to carry out public priority infrastructure, State infrastructure development or State significant development, or which cannot be refused if the subsidiary approval is necessary to carry out the development. 


In addition, there is a suite of new provisions dealing with concurrences, consultations or approvals which may be required under threatened species legislation, local plans or in relation to bushfire-prone land. 


Also, there is a suite of new ‘one-stop-shop’ provisions for various listed approvals – including approvals for mining and for petroleum prospecting and exploration – which require the NSW Planning Director-General to determine whether the relevant approval body should give approval and, if so, on what terms. Any:


  • development consent then granted by the relevant consent authority must be consistent with any such terms of approval indicated to it by the NSW Planning Director-General and
  • any approval granted by the relevant approval authority must be granted within 3 years of the grant of development consent and must be ‘substantially consistent’ with the terms of approval indicated by the NSW Planning Director-General. 

Infrastructure Contributions 


The Planning Bill establishes a new Regional Contributions Fund within Treasury funded by regional infrastructure contributions (and Parliamentary allocations). The funds are to be applied to payments to public authorities for the provision of regional infrastructure identified in a ‘growth infrastructure plan’


D. Building And Subdivision


The Planning Bill contains provisions, like those in Part 4A of the EPA Act, relating to construction certificates, subdivision works certificates, occupation certificates, subdivision certificates and compliance certificates. 

E. Review And Enforcement


The Planning Bill contains provisions, like those in the EPA Act,  for appeal from various administrative decisions and for administrative enforcement, including directions to planning authorities for the timely exercise of their planning functions. 


The Planning Bill continues the civil enforcement jurisdiction of the Land and Environment Court in relation to remedying or restraining breaches of the proposed Act. The Planning Bill also continues provisions which limit the period for court challenges to the validity of plans and planning approvals to the period of 3 months after the plan or approval is made or given.

 

herbert smith Freehills

 

For further information, please contact:

 

Peter Briggs, Partner, Herbert Smith Freehills
peter.briggs@hsf.com
 

Tony van Merwyk, Partner, Herbert Smith Freehills
tony.vanmerwyk@hsf.com
 

Tim Power, Partner, Herbert Smith Freehills
tim.power@hsf.com

 

John Ware, Partner, Herbert Smith Freehills
john.ware@hsf.com

 

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