23 May 2013

NSW planning reforms: Streamlining approvals: Code Assessment Development

by Brendan Bateman

Code assessment is meant to ensure 80% of development applications are assessed as either complying or code assessment development achieved within five years.

In addition to the exempt, complying and merit assessment development tracks that we are familiar with under the existing Environmental Planning and Assessment Act 1979 (EP&A Act), the Planning Bill includes a new assessment track called "code assessment".

The objective of including this new assessment track is to enable the Government's target of having 80% of development applications assessed as either complying or code assessment development achieved within five years.

Code assessment

Code assessment developments will effectively be another category of what would otherwise be merit assessment, but a more standardised development that meets pre-approved performance criteria. This is meant to take out of the merit assessment track those developments that do or can be made to satisfy those pre-approved performance criteria.

The code will prescribe the performance criteria of the specific aspects of a development, and identify what it considers to be acceptable solutions to satisfy those performance criteria. If a development incorporates those acceptable solutions to achieve the performance criteria, a council cannot refuse the development application; nor can it impose conditions on the development other than what will be prescribed as standard conditions. Code assessment development must be assessed and determined within 25 days.

There are other consequential amendments to facilitate code assessment development. Councils cannot stop the clock in relation to a code assessment development, nor will there be any opportunity for public submissions in relation to such a development application. The view taken by the Government is that if the community has been consulted in relation to the identification of what is "code assessment development", then there is no further need for it to be consulted about any specific code assessment development. It is sufficient that neighbours are "informed" of the fact that am application for code assessment development has been received by council.

Merit assessment

Apart from the introduction of code assessment development, the Government has also proposed to streamline the merit assessment process to limit the number of opportunities for a council to stop the clock and to require the council to notify an applicant to amend the application to meet certain performance criteria.

Further, in assessing the merit of development applications, the council is to have regard to the code assessment guidelines. Any public consultation in relation to the development application would be limited to those aspects of the development which do not meet the performance criteria for code assessment development. To the extent that a development application meets the performance criteria in the code assessment guidelines, the council cannot refuse approval in relation to that aspect of the development.

Approvals under other legislation

Development that requires approvals under other legislation will continue in large part to continue to require referral to the other agency. The Government however intends to undertake a review of the need for referrals under other legislation, and has already signalled in the White Paper that aquifer interference approvals under the Water Management Act 2000, and approvals to clear native vegetation under the Native Vegetation Act 2003, will no longer be required for State significant development on the basis that these issues would have been appropriately addressed during the strategic planning phase in preparing regional and subregional plans.

In addition to undertaking a comprehensive review of current referral requirements, a "one stop" referral shop would be established within the Department of Planning and Infrastructure. This office will effectively operate as a clearing house for referrals and obtain general terms of approval so that there is a single set of those terms. Relevant agencies will continue to assess applications and provide advice but this will be done via the Department.


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