24 Oct 2013

NSW Planning Bill finalised and introduced into Parliament

The NSW Government has made important changes to the new planning regime, particularly to the complying development and code assessment model.

After a lengthy consultation process, the long-awaited Planning Bill 2013 was introduced into State Parliament on Tuesday.

According to the Government, changes have been made in response to the public comments, including to the triple bottom line so that environmental and social considerations are on the same level as economic growth when assessing development.

Other changes the Government identifies include: 

  • all heritage protections to stay in place and a new state planning policy for the environment and heritage to be developed;
  • the 35 current zones to stay as they are; 
  • planning agreements will continue to be available for use and the Bill has been amended so that planning agreements can cover the provision of public infrastructure and other approved public purposes;
  • councils will have five years to spend revenue from infrastructure contributions, and can have a further extension from the Minister consistent with the provisions of Growth Infrastructure Plans; and
  • community appeal rights as they exist under the current law will not change, and the community will also be able to challenge the making of Regional and Subregional Delivery Plans.

Complying development and code assessment

Complying development and code assessment are at the heart of the Government's attempts to streamline assessment. The Government has set out some significant changes to the model in the final Planning Bill:

  • code assessment will be prioritised for growth areas, urban activation precincts and urban renewal areas, as identified in subregional plans; in other areas, councils will determine where codes will be applied. Codes will not be required in established, low density or heritage conservation areas;
  • code development applications will be notified for a mandatory 14 days before approval;
  • councils must consult the community on the Neighbourhood Impact Statement before any code is adopted;
  • if any development proposal exceeds key code standards such as height, setbacks, depth, width and car parking by as little as 1cm, it cannot be approved as code and must be determined through full merit assessment with community consultation;
  • councils will assess code applications, not private certifiers;
  • codes cannot apply to developments which require environmental impact statements or could impact a threatened species, State heritage item or Aboriginal heritage item;
  • councils will be able to modify the statewide complying development code to reflect the local character of their areas provided they demonstrate no reduction in complying development outcomes. A monitoring regime will also be instituted;
  • the mandatory notification periods for residential complying development applications has been increased from five to 14 days before approval, and seven days' notice must be given to neighbours before construction begins; and
  • the Planning Regulations will identify and limit the standards that can be varied under variation certificates for complying development, and those standards which cannot be varied such as height for residential development.

Given the complexity of the Planning Bill, we'll be digging further into its detail in the next edition of Insights. in the meantime, if you have any questions about how it will affect your development or business, you should seek advice now.

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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.