31 March 2006
This week the NSW Parliament passed the controversial Environmental Planning and Assessment Amendment Bill 2006. While the media coverage of the Bill has concentrated on the Minister's new powers to take control of the planning approval process, the Bill contains important changes to development contributions as well, and we'll look at them in this Alert. We'll also highlight a related change in the Department's approach to making local environmental plans, which took effect in February.
Taking control of the planning approval process
In most cases the relevant local council is the consent authority for development under the Environmental Planning and Assessment Act 1979 ("Planning Act"), whilst the Minister for Planning is the approval authority for a range of "major projects" (generally public infrastructure and other projects of State or regional environmental planning significance). In addition, the Minister has the power to assume the consent authority role (via a "call in" provision), or appoint an administrator to do so, instead of the relevant local council in certain situations.
Under the Bill, the Minister will be able to appoint a planning administrator or panel to exercise specified local council functions (including determining development applications) in certain situations, including if he or she thinks the council:
The second of these scenarios is new, and has generated significant controversy. As a consequence, amendments in the Legislative Council introduced a requirement that the Minister can act in the second scenario only if the Minister has taken into account matters which he must prescribe in advance of the decision, and the Minister for Local Government agrees to the appointment.
An administrator or panel will exercise only those of the of the council's powers which are specified in the order of appointment, meaning that the council and administrator or panel could operate concurrently but with separate powers.
An administrator or panel can only operate for five years continuously at the most, and the Minister must review its appointment and functions after two years.
New types of contributions
Development contributions under section 94 or 94A of the Environmental Planning and Assessment Act may be imposed via conditions of a development consent, to provide a contribution by developers towards the cost of providing public amenities and services. Local councils can impose section 94 contributions only if they are in accordance with the council's contributions plan and are also "reasonable".
The Bill will allow the Minister for Planning to direct a council to approve, amend or repeal a contributions plan. If the council doesn’t comply, the Minister can approve, amend or repeal it. Furthermore, the Bill removes the right of appeal in the Land and Environment Court on either the making, amendment or repeal of such a plan or any contribution imposed in accordance with it. This may prove to be a significant erosion of developer appeal rights.
The Bill also introduces a new type of contribution, the "special infrastructure contribution", which can be levied for infrastructure such as public amenities and services, affordable housing, transport and other infrastructure, or environmental conservation. Special infrastructure contributions may only be imposed in a "special contributions area", and the Bill proposes that the first such areas will be growth centres under the Growth Centres (Development Corporations) Act 1974. The Bill makes it clear that special infrastructure contributions are in addition to section 94 contributions.
The Minister is to determine the level and nature of special infrastructure contributions to be imposed in relation to a development or a class of development, and may then direct a consent authority to impose the contribution as a condition of development consent for the particular development or development of the particular class. The level of such contributions is to be reasonable, having regard to the cost of infrastructure required as a result of development. This in itself is not contentious, but the Bill also removes the right of appeal in the Land and Environment Court on either the making, amendment or repeal of such a plan or any contribution imposed in accordance with it.
Importantly, the Bill requires public consultation in determining the level and nature of special infrastructure contributions to be imposed; the Minister must do one or more of the following:
Overseeing local planning controls
In February, the Department of Planning reined in its long-standing delegation to local councils for the approval of draft Local Environmental Plans (LEPs) for public exhibition. LEPs establish zoning and related requirements, and set development controls for a particular area. Councils will now be able to exhibit draft LEPs only after review by a Departmental panel. The aim is to bring draft LEPs more into line with State Government policy. This follows on from the amendments to the Planning Act last year to provide a standard-form for key LEP provisions across all local government areas.
In addition, the Bill gives the Minister significant new powers in relation to development control plans (DCPs). DCPs are made by local councils. They are not legally binding in the same way as LEPs, but they provide important policy guidance for developers, consent authorities and the community, on issues such as design parameters and site planning. The Bill will insert a new section 74F of the Planning Act, which will allow the Minister to direct the council to make, amend or revoke a development control plan, and if the council doesn’t comply, will allow the Minister to make or amend the plan in its stead.
The new section does not specify when the Minister can exercise the power; in effect, it seems the Minister can make, amend or revoke a development control plan when he or she sees fit, as long as the plan complies with other provisions.
Changes to existing use regulations
The scope of "existing uses" has just been narrowed. A new Regulation gazetted today, the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006, means that anyone trying to change an existing use will have fewer options.
Prior to the amending regulation today, an existing use could have been changed to another use, including one that was prohibited, as long as development consent was granted. Now, the existing use can only be changed to another use if that other use is one that can be carried out with or without development consent.
