"Concept development applications" to take centre stage in NSW

By Nick Thomas, Wagih Doueihi

17 Aug 2017

The NSW Government has passed the Environmental Planning and Assessment Amendment (Staged Development Applications) Bill 2017, which will restore the law to the way in which it was widely understood to have operated before the Court of Appeal's recent decision in Bay Simmer Investments Pty Ltd v State of New South Wales.

The NSW Government has acted swiftly to legislate in response to the NSW Court of Appeal's decision in Bay Simmer Investments Pty Ltd v State of New South Wales, where, in a surprising outcome for developers and consent authorities alike, the NSW Court of Appeal held that:

  • construction-related impacts for a "staged development" proposal must be addressed in the development application for the first stage of that proposal; and
  • the staged development consent process can only be used for developments with more than one stage.

The Bill, once it receives the Governor's assent, will replace the current provisions for staged development applications in Part 4, Division 2A of the Environmental Planning and Assessment Act 1979. The key changes are:

  • "staged development applications" will be renamed "concept development applications";
  • a "concept development application" may be followed by a single detailed development application, so that the development may comprise only one stage; and
  • the consent authority is not required to consider the impacts of the carrying out of the development (such as construction-related impacts) at the concept stage, if the carrying out of the development is to be the subject of a subsequent detailed development application.

The Bill validates any consent that would have been valid had the amendments been in force when the consent was granted, except for the Walsh Bay Arts Precinct consent which was specifically invalidated by the Court of Appeal. The Department of Planning and Environment had estimated that the projects which were at risk of legal challenge had a combined capital investment value of over $8 billion and were expect to deliver over 14,500 dwellings across the State.

These amendments will provide comfort to many developers and consent authorities, especially those with inner city projects in Sydney.

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