The NSW Minister for Planning has announced a package of proposed changes to planning legislation to encourage a simpler, faster system.
The proposed reforms provide the opportunity for an improved NSW planning process framed on strategic planning and community participation.
We have reviewed the amendments and discuss some of the key impacts here.
“Overall, we believe that the revised and simplified layout of the EP&A Act will go some way to helping participants to better navigate the complex NSW planning system.
The NSW Minister for Planning has announced proposed amendments to the NSW Environmental Planning and Assessment 1979 (EP&A Act). The changes follow years of consultation on and demand for improvements to the NSW planning system.
Wholesale planning reform was abandoned in 2013. Since then the Minister has made incremental changes to planning legislation and processes to bring about, in part, some of the previously canvassed reforms.
The proposed amendments are part of a wider program being implemented to progressively improve the NSW planning system. Other elements include the Greater Sydney Commission and the exhibition of the draft District Plans for Sydney. The overall aim is to provide a renewed emphasis on strategic, evidence based planning that is coordinated with infrastructure provision.
The proposed amendments aim to:
Urbis has undertaken a review the amendment package. Overall, we believe that the revised and simplified layout of the EP&A Act will go some way to helping participants to better navigate the complex NSW planning system.
However, many of the draft amendments herald substantial change to development assessment processes without providing sufficient detail in terms of operation and process. The exhibition material indicates that further detail will be included in forthcoming amendments to the Environmental Planning and Assessment Regulations 2000 (the Regulations).
Urbis will request that the Minister make these proposed amendments to the Regulations available for review soon, preferably in the exhibition phase of the Draft Bill. This will allow critical implications from the proposed changes to be fully understood and analysed as part of the exhibition process.
The following is our summary of the potential impacts on applicants – the good, the more significant changes and the yet to be explained.
“We advocate for transparency, clarity and certainty into the planning process.
We support the following proposed changes which have the potential to deliver a positive impact on planning outcomes:
Urbis’ substantial experience in community participation leads us to believe that participation is most effective and purposeful in the strategic planning stage. The introduction of Community Participation Plans and Local Strategic Planning Statements will clearly tie the local 20-year vision in Community Strategic Plans with the regional / district plans.
We are of the view that the proposed amendments should go further to ensure the community participation is proportionate to scale and nature of the planning process and that the principles for participation reference industry best practice, allowing for robustness with flexibility and transparency. The process can be strengthened through the introduction of clear and accessible practice guidelines, evaluation of outcomes and a commitment to capacity building resources.
The amendments provide for the introduction of Local Planning Panels (previously IHAPs), where independent experts determine development applications. The formation and function of these panels will be consistent across all councils.
While not mandatory, the Minister will be able to direct a council to establish a panel and require that more planning functions be carried out by council staff. This will help remove politics from technical decision-making and allow for transparency, clarity and certainty into the planning process.
Concurrences and referrals will be rationalised following a Departmental review. Proposed step-in powers for the Secretary (if used) may reduce delays in the determination of applications arising from the concurrence process for integrated development.
A mechanism of transferrable consent conditions will apply to those developments that have conditions of consent that are substantially consistent with conditions subsequently imposed under other regulatory approvals or licences. The responsibility for enforcing these conditions will then lie with the government agency issuing the licence or other approval, rather than with the original consent authority. This mechanism will help reduce duplications and complexity.
Introduction of regulations to standardise Development Control Plans (DCP) will improve user navigation and simplify the system.
A common approach to the conduct of members of planning bodies will improve and maintain ethical
Applicants will be able to request a review of determinations (currently available for some developments) for some State significant and integrated development applications.
This will allow for deferred commencement complying development certificates to be issued on land that is yet to be a registered subdivision. This will facilitate timely development in greenfield areas.
The modifications will ensure a level of consistency in the planning and delivery of infrastructure. They will be undertaken in tandem with a current review of the Voluntary Planning Agreement process.
We advocate an evidence based approach to community needs assessment in strategic planning and planning agreement negotiation. This will foster transparency, clarity and certainty into the process, for the benefit of all parties.
“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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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 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.
“Urbis strongly urges the Minister to release the amendments to the Regulations for public review, to enable a full appreciation of the impact of the proposed changes.
The current exhibition material mentions many changes without enough detail. We have highlighted some of these changes above (eg community participation, complying development, regional development and transitional Part 3A projects). The substantial changes will be in the Regulations but we are yet to see the proposed amendments.
In addition, more detail is required in relation to:
“The amendments and associated documents are on public exhibition until 10 March 2017 and it's possible the Bill will progress within the first half of 2017.
The amendments and associated documents are on public exhibition until 10 March 2017 and can be viewed on the Department of Planning and Environment website.
Once exhibited and any subsequent changes made, the draft Planning Bill will be presented to Parliament. It is possible that the Bill will progress within the first half of 2017.
Urbis will be making a submission to the Minister to seek release for public exhibition of the proposed amendments to the Regulations and environmental planning instruments suggested in the planning legislation update. Understanding all the proposed amendments is necessary to identify the full extent of the impacts to the planning system participants.
The team at Urbis will be pleased to help you consider the potential impacts of the legislative changes to your projects and we will keep you updated with further detail, as it arises. If you have any queries please feel free to discuss with one of our team of planning experts.