02 Sep 2021

Changes for public and private sector developments in proposed new Planning Regulations in New South Wales

By Nick Thomas, John Clayton

New requirements for public and private sector developers are proposed in the long-awaited remake of the Environmental Planning and Assessment Regulation 2000, which is now out for public comment.

Following a series of changes to the Environmental Planning and Assessment Act 1979 (Planning Act) in the last few years, the New South Wales Department of Planning, Industry and Environment (DPIE) has released a draft remake of the Environmental Planning and Assessment Regulation 2000 (Planning Regulation), for public comment.

The proposed remake (Draft Regulation) includes changes which are designed to support recent policy development around the Planning Act and to bed down improvements in the planning process.  The proposed changes cover a wide range of key planning issues.  In this article, we have highlighted some of the key changes for government and large-scale developers.

Environmental impact assessment when development consent is not required

When is this relevant?

Some development does not need development consent or other approval under the Planning Act, but must be subject to a separate environmental assessment under Part 5 of the Planning Act instead. This scheme typically applies to various kinds of development by various public authorities, development for education facilities or electricity transmission and distribution infrastructure, and mining and coal seam gas (CSG) exploration.

In most situations, the proponent will prepare an assessment report and decide whether to proceed on the basis of that report (this is often described as a "self-assessment"). However, in some situations, including for mining or CSG exploration, an authority whose approval under other legislation is required for the development will review the proponent's assessment report as part of its consideration of the application for that approval.

The assessment report has become known, in practice, as a Review of Environmental Factors (REF). The Planning Act defines the proponent, or the authority whose approval is required and who is reviewing the REF, as the "determining authority".

The Planning Act and Planning Regulation currently provide determining authorities with a broad discretion as to how the assessment is done, as long as:

  • all relevant environmental impacts are assessed "to the greatest extent possible";
  • the key environmental factors checklist in clause 228 of the Planning Regulation is completed; and
  • the determining authority concludes that the development is not likely to significantly affect the environment.

What changes are proposed?

The Draft Regulation proposes to use the term "Review of Environmental Factors" in legislation for the first time.

More importantly, the Draft Regulation would:

  • empower the DPIE Secretary to prepare guidelines for the preparation of an REF and the assessment in it, and require a determining authority preparing or reviewing an REF to take those guidelines into account;
  • include any applicable strategic planning documents made under Division 3.1 of the Planning Act (ie. local strategic planning statements and regional and district strategic plans) in the list of factors which determining authorities must take into account pending the release of DPIE Secretary's guidelines; and
  • require the REF to be published on the planning portal or the relevant determining authority's website before the development commences if:
  • the development has a capital investment value greater than $5 million; or
  • the development needs an approval under other legislation; or
  • the determining authority considers that it is in the public interest to do so.

While the DPIE Secretary currently has the power to make guidelines, that power has not been exercised before. However, DPIE has announced that it is currently working on some guidelines, so they will be in place shortly after the Draft Regulation commences in early 2022.

We anticipate the guidelines will make REFs more rigorous and consistent in their form and approach. While this may produce better environmental outcomes, it will be important to ensure the guidelines allow enough flexibility in approach to cater for the vast spectrum of development types (from the very minor to the very substantial) to which this assessment scheme applies.

Designated development

Currently, Schedule 3 of the Planning Regulation identifies a variety of categories of development as "designated development". 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.

Some years ago, the list of designated development types was reasonably well aligned with the list of development types which need an environment protection licence under the Protection of the Environment Operations Act 1997 (POEO Act), in recognition of the greater need for environmental regulation of those types of development. However, the list of designated development has not kept pace with changes to the POEO Act list.

The Draft Regulation proposed to realign the two lists more closely. Key changes 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

  • The development application (DA) form will be standardised, to assist the management of DAs via the planning portal. DPIE is also proposing to work with local councils to update and simplify the standard DA form once the Draft Regulation has commenced.
  • It will be clear that a consent authority can reject an application to modify a development consent in some situations.
  • 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.
  • Land owner consent for the modification or surrender of a development consent will no longer be required if land owner consent was no required to obtain that development consent.
  • 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 slightly reduced;
    • 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.

Complying development

  • An application for a CDC will need to contain additional information (including more specific building plans), and will need a site audit statement if it proposes development on land which has been declared as contaminated under section 60 of the Contaminated Land Management Act 1997.
  • CDCs will need to contain additional information, and will include a standard condition that the development must comply with any applicable site audit statement recommendations.
  • 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.

Currently, planning certificates are required to be annexed to contracts for sale of land, and they are also used in due diligence for property development proposals or potential acquisitions.

The Draft Regulation proposes 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.

What's next in NSW planning law reform?

The proposed changes to the Planning Regulation are on exhibition until 22 September 2021. Public and private sector developers should consider making a submission on issues of importance to them.

It is currently anticipated that the new Planning Regulation will commence on 1 March 2022.

Stakeholders in development which can be carried out without consent should look out for draft REF guidelines later in 2021.

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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.