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Moving towards a simpler planning system - new Environmental Planning and Assessment Regulation starts next month

By Breellen Warry, Blake Dyer, Hayley Tam & Elizabeth Reed

• 21 February 2022 • 4 min read
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The Environmental Planning and Assessment Regulation 2021 (NSW) (2021 Regulation) commences on 1 March 2022.

The 2021 Regulation will remake and reorganise the provisions of the Environmental Planning and Assessment Regulation 2000 (NSW) (2000 Regulation). It also introduces some important changes aimed at increasing the efficiency of the planning system.

Key takeaways

The 2021 Regulation seeks to update the planning system to reduce the administrative burden on consent authorities, such as local councils. Local councils and developers should be mindful of the changes and how they impact the development assessment process. In particular:

  • development applications (DAs) and complying development certificate (CDC) applications must be in an approved form aiming to ensuring consent authorities have all the required information so as to avoid delay in the process
  • changes have been made to when modifications can be rejected or withdrawn
  • assessment periods have changed, and consent authorities now have an obligation to be transparent on the days elapsed and when the clock will cease
  • local councils will be required to include more information on planning certificates, including information on State environmental planning policies (SEPPs) that zone land, whether the land is in a special contributions area and whether any additional permitted uses apply to the land under the relevant local environmental plan (LEP).

The Overview of the Regulation provided by the Department of Planning and Environment (DPE) indicates that the new approved form for DAs will be developed in consultation with local government. Local councils should keep an eye out for the beginning of this process if they wish to participate.

For further information and assistance, DPE has published:

We provide further detail below on each of the following key changes:

  • development applications
  • electronic communication methods
  • modification applications
  • assessment timeframes
  • complying development certificates
  • environmental assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act)
  • planning certificates
  • existing use rights
  • designated development.

We also set out details of the commencement provisions below.

  • Development applications

    The 2021 Regulation aims to streamline the DA process by updating the requirements for local DAs. It does not affect any changes to requirements for State significant development or infrastructure made through the Environmental Planning and Assessment Amendment (Major Projects) Regulation 2021.

    Key changes introduced include:

    • requiring all DAs to be made in an approved form and to be submitted on the NSW Planning Portal (2021 Regulation, section 24). The DA requirements that were set out in Schedule 1 to the 2000 Regulation have been moved to the approved form, which is located on the Planning Portal.
    • the consent authority can reject an application if it does not contain the information and documents required by the approved form, the Act, or the Regulation (2021 Regulation, section 39).
    • for an application to amend a DA, if the amendment will result in a change to the development, the applicant must provide details of the proposed changes, including the name, number and date of any plans that have changed (2021 Regulation, section 37(6)). This will enable the consent authority to compare the development with the development originally proposed.
  • Electronic communication methods

    The 2021 Regulation removes requirements for hard copies of documents. Rather it requires that documents be made available online or electronically. The 2021 Regulation also provides that any provision which requires a document to be delivered, posted or published can be satisfied through electronic methods. For example, the register kept by a Council of DAs and development consents must now be kept in electronic form and published on Council’s website (2021 Regulation, section 240(5)).

  • Modification applications

    The 2021 Regulation has clarified the process for modification applications, including:

    • that the consent authority is able to reject a modification application in certain circumstances, for example if the application is unclear about the modification being sought (2021 Regulation, section 114(1))
    • allowing a modification application to be withdrawn in a similar way to a DA (2021 Regulation, section 115)
    • removing the requirement for landowner’s consent for surrenders and modifications where the original DA could have been made without the consent of the landowner (see 2021 Regulation, ss 67(5) and 68(6))
    • requiring a consent authority who grants an application for modification of a development consent to provide a modified development consent to the applicant that complies with any requirements specified by the Planning Secretary (2021 Regulation, section 118(5)).

    The last change is to address the differing practices used by consent authorities for issuing a modification determination and to ensure a consistent approach. The change also brings NSW in line with other jurisdiction’s equivalent statutory schemes (Qld and Vic) (Regulatory Impact Statement, page 29).

  • Assessment timeframes

    Provisions for calculating assessment periods and ’stop the clock‘ rules will be restructured to increase certainty about the beginning and end of assessment periods. The changes will:

    • eliminate concessional days (days that are not counted as part of the assessment period) in the current clauses 110(1)(a) and (b), and 107 of the 2000 Regulation
    • remove certain requirements to notify concurrence authorities and approval bodies, for example, there will be no need to notify for minor modifications unless the modification will change the conditions or terms imposed by those bodies (see 2021 Regulation, section 109)
    • require consent authorities to specify a reasonable period within which information is to be provided when requesting additional information (2021 Regulation, section 43(2)(b))
    • introduce an obligation for consent authorities to inform the applicant of the days elapsed in the application and when the clock will cease in certain circumstances (2021 Regulation, ss 36(3), 43(4), 44(2), 52(4) and 104(2)).
  • Complying development certificates

    CDCs are used for straightforward developments to fast-track the assessment process.

    Under the 2021 Regulation, CDC applications will be required to contain additional information, for example, the site configuration and building envelope of the proposed building(s) (2021 Regulation, section 121).

    Importantly, the 2021 Regulation also now requires a site audit statement to accompany CDC applications on land which has been declared contaminated under section 60 of the Contaminated Land Management Act 1997 (2021 Regulation, section 129).

    CDC applications will also be required to be in the approved form and include all information required by the form, the Act and the 2021 Regulation (2021 Regulation, section 120).

    These changes will pave the way for a broader range of development to be undertaken as complying development.

  • Environmental assessment under Part 5 of the EP&A Act

    Development that does not require consent under Part 4 of the EP&A Act is subject to environmental assessment under Part 5 of the EP&A Act. The Regulations may outline the factors needed to be considered in such an assessment (section 5.10 of the EP&A Act).

    New section 170 of the 2021 Regulation empowers the Planning Secretary to issue guidelines for:

    • the factors to be taken into account by a determining authority when considering the likely impact of an activity (the environmental factors)
    • the form of the document required to be prepared by a determining authority under section 171.

    When considering the likely impact of an activity on the environment, the determining authority must take into account the environmental factors specified in the environmental factors guidelines that apply to the activity. If no such guidelines are in force, section 171(2) sets out the environmental factors which must be taken into account.

    The Regulation has renamed ss 170 and 171 to clearly refer to a ‘review of environmental factors’ (REF). REF is the term that has been commonly used for the environmental assessment required under Part 5 of the Act. Previously, cl 228 of the 2000 Regulation did not use this term but still set out the factors that must be taken into account concerning the impact of an activity on the environment. The rename is intended to distinguish the requirement to prepare a REF from the Environmental Impact Statements process. This is a welcomed change.

    A determining authority will also be required to publish the REF in certain circumstances, such as when an activity has a capital investment value of more than $5 million (2021 Regulation, section 171(4)(a)). This requirement will commence on 1 July 2022.

  • Planning certificates

    Planning certificates are documents issued by local councils which outline the information that the council has about the planning controls that affect a particular parcel of land. The 2021 Regulation reorganises and simplifies the content and form requirements for planning certificates in order to focus on land use and development controls.

    The 2021 Regulation, among other things:

    • introduces the requirement that local councils include information on all SEPPs that zone land (2021 Regulation, Schedule 2(2))
    • updates provisions relating to hazard risk restrictions to include contamination, aircraft noise, salinity, and coastal hazard and sea level rise in the list of risks (2021 Regulation, Schedule 2(10))
    • requires local councils to indicate whether the land is in a special contributions area and to note whether any draft contributions plans apply to the land (2021 Regulation, Schedule 2(3))
    • requires local councils to identify whether any additional permitted uses apply to the land under the relevant environmental planning instrument (2021 Regulation, Schedule 2(2)).
  • Existing use rights

    For the most part, the current provision on existing uses will carry over from the 2000 Regulation with one exception. The Regulation replaces the term ‘floor space’ with ‘gross floor area’ (see for example, 2021 Regulation, section 163). This change is intended to create consistency in how applicants and consent authorities calculate floor area for applications to increase the floor area of a premise that has benefited from existing use rights.

  • Designated development

    The 2000 Regulation provides for a variety of categories of development known as ‘designated development’. Designated development is development that requires consent under Part 4 of the EP&A Act and an environmental impact statement.

    Previously, the list of designated development was aligned to accord with the list of development types which needed an environmental protection licence under the Protection of the Environment Operations Act 1997 (POEO Act). However, the lists are no longer in line with each other. The 2021 Regulation seeks to realign the two lists to match thresholds and coverage, adopt definitions and terminology from the POEO Act, and align petroleum works with related legislation (2021 Regulation, Schedule 3).

Commencement

The 2021 Regulation commences on 1 March 2022 with the exception of the following:

Reference

Changes

Commencement date

Schedule 6

8 Planning certificates:

  • The 2000 Reg, clause 279 and Schedule 4
  • Section 290
In force immediately before 1 March 2022, continues to apply until the end of 31 September 2022.
Applies on and from the beginning of 1 October 2022.*

Schedule 8

Amends certain sections of the Regulation, namely:

  • section 190 which concerns the form of environmental impact statement
  • section 206 which relates to information about planning agreements
  • section 217 which concerns contribution registers kept by local councils
  • section 218 which relates to the accounting records for development contributions and development levies kept by local councils
  • section 218A which outlines matters to be included in annual reports of local councils
  • section 220 which will require a local council to publish certain records on the NSW Planning Portal and the council’s website.

1 July 2022

Schedule 9

Amends the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

1 January 2022

*With thanks to Adam Stipcevic

Do you need assistance on the new Environmental Planning and Assessment Regulation?

Contact the Planning & Environment team

By Breellen Warry, Blake Dyer, Hayley Tam & Elizabeth Reed

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