21 November 2017
New South Wales is adopting greater transparency in its planning rules with the passing of the Environmental Planning and Assessment Bill. The Bill was passed by both houses of Parliament on 15 November 2017 and is currently awaiting Royal assent. The Bill was passed without amendment meaning the new provisions will come into force in the same form they appeared in the Bill as originally introduced.
Key amendments include:
The Bill introduces a new Part 2, which is intended to consolidate provisions relating to planning decision-makers under the Act, as well as introducing new mandatory community participation requirements for planning authorities.
Community participation plans
All planning authorities under the Act, including local councils and NSW development agencies that are designated planning authorities under the Act, will be required to develop a community participation plan which outlines how they will engage with the public in planning and development decisions.
Mandatory community participation requirements
The new Schedule 1 to the Act sets out the mandatory community participation requirements, including mandatory public exhibition periods for prescribed plans, development applications and development consents.
Schedule 1 also introduces mandatory public notification of decisions and reasons for decisions. The notification must include:
Decisions of Sydney district and regional planning panels, and local planning panels, are protected from automatic invalidity if they fail to comply with the requirement to publish the reasons or all of the reasons for a decision. However, there is no caveat against invalidity for a failure to adequately address how community views were taken into account.
There is also no protection against invalidity risk arising from a failure by the Independent Planning Commission (formerly known as the Planning and Assessment Commission), the Minister or Councils to comply with either requirement.
Local councils are required to develop and publish LSPS’, separate to LEPs. The LSPS’ are intended to bridge the disconnect between regional and district plans and strategic planning at the local level, and the legal development controls within LEPs. LSPS’ are to:
Development consents will now be of no effect where legal proceedings challenging the validity of the approval are commenced until such time as the proceedings are determined (so as to confirm the validity of the consent) or discontinued. This is a change from the current position where development consents are valid until declared invalid. Development consents will now also only have effect on their registration on the NSW planning portal.
The Planning Secretary may now act on behalf of an approval body under other legislation, in the case of integrated development, to determine whether or not the approval body will grant the approval, or of the general terms of its approval (e.g. where the approval body fails to make a determination or there is an inconsistency between the terms or approval of two approval bodies).
Consent authorities are now also required to take into account the reasons given by a consent authority in an original grant of consent in determining a modification application.
The Bill consolidates provisions that regulate building and subdivision certification which are currently in Parts 4, 4A and 8 of the Act, as a result of recommendations from the independent review of the Building Professionals Act.
New provisions have also been inserted to, amongst a number of other things, enable:
A transparent, simplified and consolidated planning system is essential to an effective planning and development regulatory environment. The Bill introduces amendments which assist to rationalise, consolidate and simplify various provisions relating to the administration of the Act and the planning bodies administering it, as well as increasing the Government’s focus on strategic planning.
However, there are concerns that some amendments, particularly those surrounding mandatory community participation requirements, may create new and increased risks of administrative appeals. This may impact the feasibility of projects as a result of delays and uncertainty arising from legal challenges.
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