Many of the changes proposed may have significant impacts on current and future development processes.
Here we look at the NSW planning changes that may have the biggest impact on applicants.
- Part 3A transitional arrangements will be removed.
Transitional arrangements for projects approved under the former Part 3A will be repealed and all transitional Part 3A projects will be deemed to be either State significant development or State significant infrastructure projects. The current transitional provisions are to be amended and will prevent any further modification of Part 3A approvals under the former modification provisions (s75W).
The amended Regulations intend to allow modification applications for existing transitional Part 3A projects to be received for two months following the passage of the Bill. Further, where the Secretary’s Environmental Assessment Requirements (SEARs) have already been issued for modification applications, an application can be lodged within 12 months. Modification applications falling outside these two windows will then be subject to s96 modification provisions, which require the applicant to demonstrate that a development as proposed to be modified will be substantially the same as the approved development.
The ongoing effect of approved Part 3A concept plans is intended to remain.
The detail of how concept plans will continue to have effect and the timing around the lodgement of modification applications following the passage of the Bill is not yet available for public comment.
Urbis strongly urges the Minister to provide the proposed regulation amendments for public review so that future planning for these projects can take into consideration the appropriate development pathways.
- Consents cannot be modified to approve existing unauthorised works.
Retrospective approval under a s96 application will not be possible. Unauthorised works may be penalised, require demolition or require an application for a building certificate.
- Assessment of modifications to take into consideration the reason for the original consent.
When considering a modification application, planning authorities will be required to consider the ‘statement of reasons’ for imposing a condition in the original consent. These statements will explain the importance of certain conditions and the reasons for imposing them.
- Some projects may require pre-application community consultation.
The Minister will be able to make Regulations to encourage or require certain consultation activities to be completed by an applicant before a development or modification application is lodged. Consultation at this early stage can be costly to the applicant and ineffective for the community.
Urbis will request that the Minister releases the detail of the proposed regulation amendment for public comment. As previously indicated, we support community participation, however it must be suitable to the scale of the development to be appropriate and effective. Guidelines should be issued to detail what constitutes pre-application consultation.
- New thresholds for Regional Development.
Capital investment value (CIV) thresholds for Regional Development (and therefore development required to be assessed by a planning panel) will be altered and removed from the EP&A Act and transferred to SEPP State and Regional Development. Suggested rises include:
- $20 million to $30 million CIV threshold for some developments
- $5 million to $15 million Council-related development threshold for those Councils with a local planning panel. .
- All new schools will be State Significant Developments.
The explanatory documentation indicates that new schools will become State Significant Developments and that the amendment to regional development thresholds for alterations and additions at existing schools will be lowered to a CIV of $20 million.
However, the document continues to show educational facilities (including associated research facilities) with a CIV of more than $30 million as regional development. Additionally, further conflicting information shows that education facilities under Part 3A transitional arrangements (discussed above) will become State significant infrastructure.
These anomalies and inconsistencies could be avoided if the detailed amendments to the Regulations and SEPP State and Regional Development are exhibited and available for review.
- Reduced opportunity for spot rezonings.
The requirement for Councils to undertake five-yearly reviews of Local Environmental Plans (LEPs) to maintain contemporary strategy may reduce the potential for justification of a spot rezoning by way of applicant-initiated Planning Proposals. If these LEP reviews are to be effective, however, they must be based on strategy and not just simply result in a “roll-over” of existing provisions.
- Councils may be required to certify certain complying development.
There will be changes to indicate that Council, not private certifiers will need to certify certain types of Complying Development. These changes to the Regulations have not been provided, nor is there an indication of what development categories are being considered.
- Compliance levies will be introduced for Complying Development.
This is intended to support councils in their enforcement role. This levy may extend to development applications. Further work is needed to determine the most efficient and equitable model for the levy.
- Infrastructure contributions will apply to Complying Developments.
Complying Developments may enter in to special infrastructure contributions and voluntary planning agreements. The process for how this happens is yet to be explained.
- The Planning Assessment Commission (PAC) will no longer have a statutory function to review development proposals.
The PAC will be renamed the Independent Planning Commission and continue to have a role to assess State significant development proposals.
Currently, the PAC carries out a review of any aspect of a State significant development including the holding of a public hearing, as requested by the Minister for Planning or the Secretary. The proposed changes remove the review process but include, where required, a two-stage public hearing process as part of the development assessment.
- The first stage will allow the Commission to hear from the community and the proponent and identify issues for the assessment of the proposal.
- The second stage will allow detailed examination of the proposal, the assessment report and any draft conditions.