05 Dec 2013

Parliament's response to NSW Planning Bill signals a long summer

by Nick Thomas

The Opposition's changes to the Planning Bill have triggered another round of community consultation.

The NSW Government's Planning Bill was passed by the Legislative Council in NSW Parliament on 28 November – the second-last day of the 2013 Parliamentary sittings – but with 51 amendments which would significantly change aspects of the current and proposed NSW planning regime.

The amended Planning Bill was returned to the Government-controlled Legislative Assembly that evening, "for concurrence" on the following day, but the Legislative Assembly firmly rejected the amendments.

The Legislative Council's key changes to the Planning Bill

The Legislative Council made a number of other amendments to the Planning Bill, including amendments to expand the public exhibition and public consultation provisions throughout the Planning Bill. The key ones are:

Removal of the "Code assessable development" planning approval track

The Planning Bill provides several planning approval tracks. These include tracks which are broadly similar to those in the existing Environmental Planning and Assessment Act 1979 (NSW) ("Planning Act"), and a new track called "Code assessable development".

The code assessable track is one of the key reforms proposed in the Planning Bill. It is a streamlined assessment track, and is intended to apply to the majority of development proposals in NSW. The Government intends to use this track, and reforms to the complying development track, to lift the proportion of development proposals which are approved under codes in NSW from the current 27% to about 80%, bringing NSW into line with the code assessment regimes in Queensland and Victoria.

The Legislative Council amendments removed the "code assessable development" track from the Planning Bill.

Given the importance of the code assessable track in the Planning Bill, we have highlighted its key features below.

Code assessable development is essentially merit assessable development which meets pre-approved performance criteria. A code in a local plan would specify performance criteria for particular aspects of a development, and "acceptable solutions" for those performance criteria.

The code assessable development track would be prioritised for growth areas, urban activation precincts and urban renewal areas, as identified in the subregional plans which are proposed in the Planning Bill. In other areas, councils would determine where codes will be applied.

A council would have 25 days to assess and determine a development application (DA) for code assessable development (including 14 days of public notification). If the DA adopts the relevant acceptable solutions, the council could not refuse consent for that DA, and could impose only prescribed standard conditions of consent. However, if the DA proposes even a minor exceedance of a code standard, the code assessable track would not apply and the DA would need full merit assessment.

Additional of a new "affordable housing" regime

The Legislative Council's amendments introduced a specific scheme allowing a planning approval authority to impose conditions of planning approval which require a developer to make contributions to the authority for affordable housing in the authority's area, if the contribution is consistent with the local plan for the area. The contribution would be required in the form of land dedication or payment of money, but the authority could accept works in kind instead.

The contribution could be imposed only if the authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing in the area, or will create a need for affordable housing in the area, or that the proposed development can only be carried out after amendments are made to the local plan, or if the regulations otherwise authorise it.

The affordable housing contributions regime is broadly similar to the regime for section 94 contributions under the Planning Act, but it goes further than that regime in some respects. For example, affordable housing contributions could be imposed in addition to other conditions relating to the provision or retention of affordable housing.

Removal of the existing "resource significance" provisions for mining projects

The Government recently amended State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Resources SEPP), following a lengthy period of public consultation and consideration, to emphasise the significance of the resource to be extracted in the assessment process and to provide non-discretionary development standards for the assessment of some key environmental issues for mining projects.

Those amendments should provide a clearer and more consistent process for assessment of mining projects, but it will not necessarily lead to approval of mining proposals, as an extensive environmental assessment is still required.

The Legislative Council's amendments would repeal these amendments to the Resources SEPP, and prohibit the introduction of similar provisions into planning instruments in future.

The recent amendments to the Resources SEPP are now in force, and apply to resources projects. The Legislative Council's amendments to the Planning Bill would have effect only if the Planning Bill is passed with the Legislative Council's amendments in place and then receives the Governor's assent.

The Government's reaction

In the Legislative Assembly, the Minister for Planning and Infrastructure, who introduced the Planning Bill into Parliament, was highly critical of the amendments.

The Minister indicated that the Government would spend much of the Parliamentary break going through the amendments one by one and undertaking more community consultation. In a subsequent media release, the Minister said that the Government "will now consider its position".

It will be very interesting to see what the Government proposes when Parliament resumes on 25 February 2014.


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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.