Developers should be prepared for a potential new planning world order as the draft Environmental Planning and Assessment Amendment Bill 2017 (the Draft Bill) is released for public consultation. The Draft Bill contains some significant changes, including to section 96 applications, construction certificates, complying development certificates and the end of transitional Part 3A projects. Focusing on what we consider to be the most significant changes, the main proposed amendments are as follows.
1. Strategic Planning
Councils will be required to prepare a strategic plan for the local area to demonstrate how regional or district strategies are implemented on the ground. The strategic plans, once endorsed by either the Department of Planning or the Greater Sydney Commission, will inform rezoning decisions. Of course, many Councils already have strategic planning documents which inform decision-making at the local level.
Under the proposed changes, LEPs will also need to be reviewed by Councils every 5 years.
A standard DCP format will also be introduced, as well as an online library of optional model provisions. This is designed to make DCPs more accessible and more consistent as between Councils although Councils will still retain considerable discretion in relation to the content of DCPs.
2. Importance of good design to be reflected in the Act
Good design is to be promoted by its inclusion as an object in the Act. A draft Architecture and Design Policy for NSW has been released to open a discussion with the community, industry and council stakeholders about the delivery of good design outcomes.
3. Increase in the thresholds for regional development
The threshold for development to be determined by Sydney district and regional planning panels is to be increased. In particular, the threshold for regionally significant development is to be increased from a capital investment value of $20 million to $30 million.
4. Local planning panels and appropriate delegation
There will be a move towards more decisions being made by local planning panels (formerly independent hearing and assessment panels) and council staff under delegation. In our view, this is a positive step as more development applications are likely to be considered by councils given the increases in the regional development threshold.
The Department will have the power to direct a council to appoint a local planning panel where there are concerns about the timeliness or quality of decision making or corruption. The Minister will also be able to direct council staff to make decisions under delegation.
5. New Independent Planning Commission
The Planning Assessment Commission will become the Independent Planning Commission. Importantly, the PAC’s review function will be removed and instead the IPC will guide the Department’s assessment of a proposal. The assessment process proposed will involve two public hearings; one before the close of public submissions and one after the Department has completed its assessment and prepared draft conditions of consent, if recommended for approval.
The IPC will retain the PAC’s consent authority functions. It is proposed that the State and Regional Development SEPP 2011 will be amended to prescribe the types of State significant proposals that will be determined by the IPC.
6. Review of decisions
Applicants will be able to request an internal review of decisions relating to integrated development and State significant development (unless it involves a high risk development such as heavy industries, intensive livestock industries and mining operations if the IPC has held a public hearing into the development).
The right of review will continue not to apply to decisions in relation to complying development certificates and designated development.
7. “Step-in powers”
It is proposed that the Secretary will be given a new “step in” power to give advice, concurrence or general terms of approval on behalf of another agency where the agency has not responded, refused concurrence, or where conflicting advice has been issued by agencies. The “step-in” power will not apply to State significant development, State significant infrastructure, or activities under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act).
8. Validity of complying development certificates (CDCs)
Another important change is that where a CDC does not comply with the relevant standards in the relevant SEPP or other environmental planning instrument, it can be declared invalid by the Land and Environment Court.
This amendment is a response to the decision of the Court of Appeal in Trives v Hornsby Shire Council [2015] NSWCA 158. In that case, the Council had challenged the CDCs on the basis that the relevant development was not properly characterised as “detached studios” under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP). The Land and Environment Court invalidated the CDCs due to non-compliance with standards in the SEPP, but this was overturned by the Court of Appeal which found that the characterisation of whether a development complied could only be made by the certifier, acting reasonably.
9. Construction certificates to be consistent with development consent
In light of concerns about the ability of certifiers to issue construction certificates that are inconsistent with the development consent (following Burwood Council v Ralan Burwood Pty Ltd (No.3) [2014] NSWCA 404), clearer provisions will be included in the Act rather than in the accompanying Regulations requiring that a construction certificate must be consistent with a consent. The Court will also be given the power to declare an inconsistent construction certificate invalid.
10. Changes to s 96 – strict limits on retrospective approvals
A significant change is that section 96 modification applications will no longer be available to retrospectively regularise unauthorised works. Developers should be aware of this change, given that any unauthorised building works will therefore require a building certificate to prevent action being taken against them by the relevant council for demolition or removal of the unauthorised building works.
11. Planning agreements
Draft documents have been prepared by the Department, which, if adopted, will require councils to have regard to specific principles, policies and procedure when negotiating and preparing planning agreements. It is hoped that this will ensure a more fair and transparent system and that the infrastructure provided in any agreement will have been identified as part of an assessment of the community’s needs.
12. Development Contributions
A review of the current guidelines relating to development contributions is also being undertaken and the Department is preparing special infrastructure contribution determinations for high growth areas.
13. Enforceable undertakings
To improve compliance outcomes the Department and councils will be given the power to enter into enforceable undertakings as part of their enforcement powers. If the undertaking is subsequently breached, the Department or the councils as the case may be can apply to the Court to enforce the terms of the undertaking.
14. State significant development – ending of Part 3A once and for all
Please see the link to our article on the changes to s 75W and the implications for developers here: The final nail in the Transitional Part 3A coffin.
The public consultation period for the Draft Bill is open until 31 March 2017.