The new Planning Regulation in New South Wales is finally here

By Nick Thomas, John Clayton and Alice Brennan
03 Mar 2022
Many public and private sector development proponents will need to consider refinements to their planning application and assessment processes, as they and approval authorities adjust to the new Environmental Planning and Assessment Regulation 2021, which commences mostly on 1 March 2022.

Related Insights 

After many years of reviews and revisions, New South Wales finally has a new planning regulation.

The Environmental Planning and Assessment Regulation 2021 (2021 Regulation) is largely a remake of the previous regulation, which was introduced in 2000 and amended many times since then (2000 Regulation). However, there are important changes. Some benefit developers and offer more clarity and efficiency, while others impose additional requirements and rigour.

In addition, the final version of the 2021 Regulation includes some changes from the public consultation draft last year, in response to submissions during the consultation process.

Most of the 2021 Regulation provisions commence on 1 March 2022.

We commented on several key issues in the public consultation draft of the 2021 Regulation in September 2021. We have revisited those key issues below, now that the 2021 Regulation has been finalised.

Environmental impact assessment when development consent is not required

The 2021 Regulation makes some important change to the assessment requirements for development which does not need development consent or other approval under the Planning Act (typically various kinds of development by various public authorities, certain development for education facilities or electricity transmission and distribution infrastructure, and mining and coal seam gas (CSG) exploration).

The broad discretion as to how an assessment is done has been retained, although the Department of Planning and Environment (DPE) is working on guidelines for assessment reports, which will now be known formally as a Review of Environmental Factors (REF).

The main change in the 2021 Regulation is a requirement for a "determining authority" (ie. the proponent if a public authority, or the approval authority reviewing the REF in other situations when considering an application for another approval) to publish the REF on the planning portal or the relevant determining authority's website in some situations.

Under the final 2021 Regulation, as with the draft 2021 Regulation, publication is required if:

  • the development has a capital investment value greater than $5 million; or
  • the determining authority considers that it is in the public interest to do so.

However, where the draft 2021 Regulation required exhibition whenever an activity needed approval under any other Act, the final 2021 Regulation requires it only for activities which need:

  • an environment protection licence under the Protection of the Environment Operations Act 1997;
  • a heritage approval under section 57 of the Heritage Act 1977;
  • an Aboriginal heritage impact permit under the National Parks and Wildlife Act 1974; or
  • various permits under the Fisheries Management Act 1994.

In addition, under the final 2021 Regulation:

  • the DPE Secretary can exempt particular classes of activities from the publication requirements (this should provide flexibility so that activities that are minor, routine or of little public interest are not subject to the requirement to publish a REF);
  • publication can occur as soon as possible after an activity commences (but not later than one month after) if it is not practicable to publish the REF beforehand (this is intended to reduce the risk of delays to the delivery of critical infrastructure); and
  • the publication requirements do not apply to activities carried out under an assessment code which has been approved under the 2021 Regulation.

The REF publication requirements will commence on 1 July 2022, to allow more time for determining authorities to prepare.

Designated development

The final 2021 Regulation largely replicates the draft 2021 Regulation provisions which sought to realign the list of "designated development" under planning law with the list of development types which need an environment protection licence under the Protection of the Environment Operations Act 1997.

Designated development is development which needs development consent under Part 4 of the Planning Act but which also needs an environmental impact statement (EIS) and must be publicly exhibited. In addition, in many cases, an objector to a development application for designated development may appeal against the merits of a development consent which his granted for it, and that right is not available for other development which needs consent.

Key changes in the 2021 Regulation include:

  • making several emerging technologies designated development, such as energy recovery from waste facilities, large-scale battery storage facilities, geosequestration, desalination facilities which are large scale or located in sensitive areas;
  • excluding several lower risk activities and updating development type specifications based on industry changes (eg. PV solar energy generators will be designated development only if they provide more than 30MW and are located on a flood plain); and
  • updating and realigning terminology, location-based triggers and other exclusions.

Local development and complying development

The Draft Regulation proposes a collection of changes to "local development" (ie. broadly speaking, development which needs development consent but is not State significant development) and complying development (ie. development which needs a complying development certificate (CDC) instead of a development consent). Some examples are outlined below:

Local development

Lodging a DA or an application to modify a consent

The development application (DA) form will be standardised, to assist the management of DAs via the planning portal. DPE is also proposing to work with local councils to update and simplify the standard DA form now that the 2021 Regulation has commenced.

The information requirements for applications to modify a development consent and proposals to amend a DA which is still under assessment will be clarified, to enable easier comparison of the current and proposed developments.

It will be clear that a consent authority can reject an application to modify a development consent in some situations, within 14 days after receiving the application. This brings modification applications more into line with DAs.

Land owner consent for the modification or surrender of a development consent will no longer be required if land owner consent was not required to obtain it for the relevant development consent.

Stopping and restarting the clock

The "stop the clock" and "deemed refusal" time frames for the processing of DAs will be clarified and simplified. For example:

  • "stop the clock" arrangements for referrals and concurrences will be simplified and timeframes will be reduced marginally (in most cases by 1 day);
  • the clock "restart" arrangements when a DA is amended will be clarified; and
  • a consent authority will be required to nominate a reasonable time for responding to a request for additional information, and will need to inform the applicant how many processing days have expired when a request for additional information is made.

This should reduce disputes about processing times and triggers for "deemed refusal" appeal rights (ie. an applicant's right to appeal to the NSW Land and Environment Court after a specified time, as if its application had been refused, even though the application has not been determined yet).

Amendments to a DA or a modification application

DA amendments are a critically important part of the DA process, as they allow applicants to respond to consent authority and other stakeholder comments, but they are only valid if the consent authority agrees to allow them. In addition, currently, an amendment will re-start the "deemed refusal" period for the DA or the modification application.

Under the 2021 Regulation, a consent authority will need to indicate, via the planning portal:

  • whether or not it agrees to allow a proposed amendment of a DA or a modification application prior to determination;
  • whether it considers the proposed amendment to be "minor" - if so, the "deemed refusal" clock will not restart; and
  • if it does not consider the proposed amendment to be "minor", whether it will require a restart of the "deemed refusal" clock.

These changes will provide more certainty about the status of amendments, and, as the focus on consent authorities meeting decision-making time frames increases, they may provide an added incentive for more timely decision-making. However, they will also mean that applicants have less time to commence appeals if their application has not been determined.

Further consultation

DPE has indicated that it is continuing to work with councils and other stakeholders on aspects of the development DA process, and so further changes could be proposed later this year.

Complying development

An application for a CDC will need to contain additional information (including more specific building plans), and a statement by a qualified person certifying that the relevant land has been appropriately investigated in accordance with EPA contamination guidelines. However, the proposal in the draft 2021 Regulation, to require a site audit statement under the Contaminated Land Management Act 1997 in some situations, has been deferred for further consideration.

Pre-approval notices which are given to neighbours and the council before a CDC is granted will need to include the site plan that accompanied the CDC application.

Planning certificates

Planning certificates are issued by local councils under the Planning Act for a parcel of land to specify prescribed information about the zoning and other land use conditions and controls for that land.

The draft 2021 Regulation proposed to reorganise and simplify the content and form requirements for planning certificates, to focus more on what is useful for prospective developers, buyers and sellers of land, and to direct them to other sources of information if it is available elsewhere.

Following some concerns about how these changes would work, the final 2021 Regulation defers commencement of these provisions until October 2022.

Net benefit?

The key aims of the 2021 Regulation include simplifying and clarifying key steps in planning assessment and approval processes, providing a single source of accessible information, and reducing the overall administrative burden for stakeholders. Many changes focus on making use of DPE's planning portal.

Overall, the changes should provide a net benefit for consent authorities. Development proponents will benefit from more clarity in various parts of the assessment and approval process. However, additional assessment requirements and additional consent authority powers will increase the burden for many proponents.

Public and private sector development proponents should review their processes and strategies for planning application and assessment processes, and consider whether they should be refined to address the changes in the 2021 Regulation.

Get in touch

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.