By Aaron Gadiel, Partner
The NSW Government has presented a proposed new law to parliament that would significantly change the state’s land use planning laws.
The changes are set out in the Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025 (the bill).
A ‘bill’ is a proposed law that has been introduced into parliament, but has not yet passed.
The bill principally seeks to amend the Environmental Planning and Assessment Act 1979 (the EP&A Act). It also proposes changes to some other legislation.
This article analyses the bill from the perspective of property developers and their consultants. It does not attempt to deal with every aspect of the bill. This article is not a replacement for legal advice.
In introducing the bill to the parliament, the Planning Minister, Paul Scully, said that the proposal ‘is a necessary reset of the way the planning system and its pathways work in NSW’.
‘It tackles the practical delays that are holding up the delivery of homes and job-creating projects and driving up costs.
‘It removes unnecessary red tape that has grown over decades, which may have had a purpose at a given point in time, but which has not stood the test of time.
‘It simplifies decision-making and makes sure that good development — development that has overall benefit — does not get stuck in the system but is still assessed properly,’ Mr Scully said.
The bill contains a series of very positive measures that, if properly implemented, will reduce some of the red tape of the NSW planning system.
Having said this, some measures in the bill have not been fully thought through — and may not work as intended by the NSW Government.
Furthermore, some measures in the bill are likely to make life more difficult for property developers.
The bill proposes four material changes to the ‘objects’ (objectives) of the EP&A Act.
The objectives of the legislation are important — as they are often used as a guiding principle when consent authorities carry out a merit assessment of a development application. They can also inform decisions on whether (and how) planning controls should be changed.
The objectives already say that the planning system is there to:
In terms of housing, the current objectives only reference the promotion of ‘affordable housing’. This is defined to mean a narrow class of rent-controlled housing — and does not include owner-occupied or other housing that can be enjoyed by a wider cross-section of the community.
The new objects broaden out the housing objective to ‘promote the supply, delivery and maintenance of housing, including affordable housing’. This sends a much clearer message to decision-makers that the planning system stands in favour of the delivery of all types of housing, not just ‘affordable housing’.
The current objects of the EP&A Act make no reference to productivity. Decision-makers under the Act have often shied away from taking into account the effect of their decisions on the economy or the productivity of individuals and enterprises. A new provision is to be inserted that says that it is an object of the Act to ‘promote productivity through the development and management of the State and its resources’. The concept of ‘resources’ includes land.
A new object is to be introduced to say that the EP&A Act is there to ‘promote a proportionate and risk-based approach to environmental planning and assessment’. This is a welcome sentiment, as we frequently see decision-makers (particularly at a local council level) sterilising land or limiting development in a way that is disproportionate to the risks that are cited in justification. This is often an issue, for example, in flood management and flood evacuation.
Finally, a new object is to be introduced for the Act to ‘promote resilience to climate change and natural disasters through adaptation, mitigation, preparedness and prevention’. It is pleasing that this objective recognises that adaptation and mitigation are appropriate tools. Most development applicants are willing to embrace adaptation and mitigation measures when needed.
The bill creates a new ‘Development Coordination Authority’.
The first thing to appreciate is that this sounds like a major new institution, but, in truth, the Authority will simply be the Secretary of the Department of Planning, Housing and Infrastructure wearing a different hat. It can be expected that the staff doing the work of the Authority will merely be officers of the Department.
The Development Coordination Authority will take responsibility for issuing ‘general terms of approval’ in lieu of other NSW Government agencies when they are required for integrated development.
The Planning Minister, Mr Scully, says that this ‘new authority will centralise decision-making and advice currently referred to multiple State agencies’.
Mr Scully says that ‘the authority will bring together experts from across government agencies to coordinate conditions on development applications.
In brief terms, general terms of approval are needed in the assessment of a development application when, to carry out the development, one of the following approvals would apply:
In the above circumstances, the bill proposes that the Development Coordination Authority would issue the ‘general terms of approval’ rather than the individual agencies referred to above.
Once development consent is granted, there will still be a need to obtain the actual approval from the relevant agency. (The bill does not change the existing requirement that the subsequent approval must then be granted, consistent with the development consent, if an application is made within three years after the grant of the development consent.)
Additionally:
The bill does not contain any proposals to change the existing the concurrence and consultation arrangements with:
The bill does not propose anything that will prevent local councils from referring development applications to agencies for comment in circumstances where such a referral is not actually required by law.
The success of this reform will probably depend on whether the public servants who actually have the expertise and authority to make decisions will be transferred Planning Department (the ‘Development Coordination Authority’). The reform might be seen as hollow, if all that happens is that another layer is created between a local council/development applicant and the public servant who has the expertise/practical authority to actually decide whether general terms of approval should be issued (and if so, what the approval should say).
For example, is the government actually proposing that the Planning Department (the ‘Development Coordination Authority’) will make all decisions on the issue of ‘general terms of approval’ concerning state heritage items without reference to the Heritage Council? If it is, this would be a measure welcomed by property developers. On the other hand, if the ‘Authority’ simply acts as a post box between the local council/development applicant and the Heritage Council, the reform may have little benefit and, in fact, may be negative.
The Planning Minister, Mr Scully, says that ‘there is currently a gap between the faster complying development pathway and a full development application assessment process’.
Mr Scully says that ‘there is often a duplication of assessment, public exhibition and/or concurrence requirements, once, when consultation and consideration of important impacts have occurred up-front, and again, when those upfront assessments are again put on exhibition.’
To deal with this, the bill proposes a ‘targeted assessment’ pathway that will provide a ‘fast-tracked process’, bridging the gap between complying development and a full development assessment.
‘It will streamline the process by turning off unnecessary steps if the issues have already been addressed through up-front strategic planning or have been addressed through development controls or codes,’ Mr Scully says.
‘This new pathway will allow reduced or no public exhibition, depending on how much strategic work has already been done.
‘It could be used for both small-and large-scale proposals, as long as key planning issues have been resolved up-front or are adequately addressed in the planning controls. ‘If they have done the right thing and done the work up-front, eligible projects could cut assessment times by up to 50 per cent—down to under 50 days.
‘This will accelerate low-risk development, reduce duplication in assessment and free-up councils’ resources,’ Mr Scully says.
There are no details presently available as to what development might be identified as ‘targeted assessment development’.
The identification of ‘targeted assessment development’ would be made later, via a state environmental planning policy. The Planning Minister would, before implementing such a policy, be required to:
A development application for ‘targeted assessment development’ will only be subject to a limited merit evaluation. In brief terms, it will be necessary for the consent authority to take into consideration, where relevant:
However, the consent authority will be precluded from taking into consideration:
It is not, at this point, clear as to how beneficial this arrangement will ultimately turn out to be.
Firstly, the environmental planning instruments already conjure up a wide range of matters that require consideration.
If, for example, some types of residential flat buildings (of three or more storeys) were identified as ‘targeted assessment development’ without some further amendment to Chapter 4 (‘Design of residential apartment development’) of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP), the development would still require full assessment under all the provisions of the Apartment Design Guide. Whether such a further amendment would be made is not presently clear.
Secondly, local council development control plans must still be considered, when relevant. (This does not apply to state significant development.)
Development control plans normally contain numerous provisions that must be addressed for a typical development. So, again, if the application of these development controls plans is to be limited for ‘targeted assessment development’, a provision will need to be included in some future state environmental planning policy or local environmental plan turning-off some or all of the development control plan (for such development). Again, whether such a provision would be inserted is not presently clear.
Thirdly, the bill’s language implies that matters of public interest, significant likely impacts of that development and suitability of the site for the development must still be considered if they arise out of an environmental planning instrument, development control plan or a planning agreement. However, it does not expressly limit whether a consent authority would be obliged to consider such matters when they arise out of public submissions. With the current legal wording, local councils are likely to argue that those matters, if raised in public submissions, must be considered. (Hopefully this can be tidied up by parliamentary amendment before the bill is finalised.)
Decisions on development applications for ‘targeted assessment development’ could be appealed to the Land and Environment Court, as with standard development applications.
The Planning Minister, Mr Scully, says ‘some [development consent] conditions make projects harder to deliver — or even unfeasible — because of the burden they place, even though the consent is granted’.
The bill makes two proposals in relation to conditions of development consent.
Firstly, a new provision will be inserted that requires — for certain kinds of development specified in future regulations — a consent authority to:
This would, of course, be a positive measure for development applicants.
It is not yet apparent which type of development will be subject to this new mandatory consultation regime.
Secondly, the bill allows a state environmental planning policy to specify a ‘model condition’.
A model condition may contain directions as to the:
A consent authority will be required to give effect to these directions when granting development consent or modifying a development consent.
The Planning Minister, Mr Scully, says that the introduction of model conditions ‘will be prioritised for housing projects’.
Model conditions, if well written, have the potential to make a developer’s life much easier.
Nonetheless, there is a risk that the conditions will be written inflexibly or inappropriately and create new problems. Time will tell.
The bill proposes the abolition of the state government-appointed district and regional planning panels.
This is a major move that reverses the trend of reforms that started in 2009. The trend has been to reduce local council influence for larger projects, that are likely to meet regional, rather than merely local needs.
At present there are five Sydney district planning panels:
There are four regional planning panels:
The panels consist of five members, two are appointed by the relevant local council, but the majority (three) are appointed by the NSW Planning Minister. Each panel chairperson is appointed by the Minister from the state appointees.
In simple terms, the district and regional planning panels generally deal with development that is not state significant where:
These panels were first introduced in 2009, in part, through a recognition that these larger developments were often responding to a housing or employment-related demand that was unmet on a district-wide or regional scale. The idea was that the state-appointee majority would enable narrowly focused local council assessment reports to be challenged. Indeed, we have seen many instances of these panels supporting development (and granting development consents) when local council officers had prepared negative assessment reports.
Generally speaking, district and regional planning panels have (in our experience) demonstrated more independence from local councils when compared to local planning panels. Local planning panels are entirely appointed by local councils and whose members can be unilaterally sacked by a local council at any time.
The Planning Minister, Mr Scully, has told Parliament that the bill ‘will simplify the approval layers for development applications and focus accountability for making the final decision’.
This will be done by immediately abolishing the Sydney district planning panels (once the bill becomes law), and providing for the later abolition of regional planning panels.
In Sydney, the intention is to devolve any regionally significant development to local planning panels.
For regional areas, it seems that the intention is for the Planning Department to establish local planning panels that cover multiple local government areas. Where a local planning panel covers more than one local government area, its members will be appointed by (and can only be removed by) the Secretary of the Department of Planning, Housing and Infrastructure.
In regional areas, this has the potential to reduce the scope for local councillor decision making for development applications. At present, local planning panels are only mandatory in:
The rest of NSW still generally operates under the older system where councillors decide which development applications are refused or approved.
The intended roll-out of local planning panels across multiple local government areas, in regional areas, by the Department will remove local councillors from the development application decision-making in those areas for the first time (as a consequence of the existing section 4.8(2) of the EP&A Act, which is not proposed to be amended).
In some areas, that may be perceived as a negative by property developers, because, in many regional councils, local councillors can be more pro-development than in Sydney councils. (Although in some coastal areas such as the Tweed Shire and Byron Shire, the sidelining of local councillors will likely be welcomed by property developers.)
However, in Sydney, it is hard to see how the abolition of district planning panels, with their state-government appointed majority, and their replacement with local planning panels (exclusively appointed by the local council) is anything other than a negative for development applicants.
Mr Scully also says that ‘the referral criteria for local planning panels will be updated to make sure they are focused on genuinely significant matters’. This suggests that the Minister may increase the range of matters that can be dealt with by local council officers under delegation, rather than being dealt with by the local planning panel itself.
There are currently three pathways by which a development consent may be modified. (For the purposes of this analysis we are ignoring Court-granted development consents.)
Firstly, there is section 4.55(1). This provision allows a consent authority to approve a modification involving minor error, misdescription or miscalculation. The scope of such applications is very limited.
An applicant cannot commence a merit appeal to the Land and Environment Court for this type of application if:
Secondly, there is section 4.55(1A). This provision applies to allow a consent authority to approve a modification, where the consent authority is satisfied that:
An applicant has appeal rights to the Land and Environment Court in relation to this type of application.
Thirdly, there is section 4.55(2). This provision applies to allow a consent authority to approve a modification, where it is satisfied that the proposed modified development will be same or substantially the same as the originally approved development.
An applicant also has appeal rights to the Land and Environment Court in relation to this type of application.
The bill proposes to:
A section 4.55(1) application would be expanded so that it could be used either:
This would enable to a section 4.55(1) application to deal with (for example) procedural problems with conditions, in circumstances where the physical form of the development (and its social impacts) do not change.
A commensurate change would be made to section 4.55(1A). An application under section 4.55(1A) would no longer be capable of approval if it had no environmental impact. This would mean that any application made under section 4.55(1A) would generally either have to change the physical form of the development or change the social impacts of the development. A consent authority would need to be satisfied that the change to the environmental impact of the development was ‘minimal’.
The bill is proposing that a consent authority would be obliged to approve a modification application made under the new expanded section 4.55(1) if it is not determined within 14 days (other than in relation to a modification of the housing and productivity contribution condition).
However, a consent authority would still be free to impose conditions on the consent as a result of the modification application that are different from the conditions that the applicant sought. (The conditions would still need to legitimately arise from the issues raised by the modification application.)
Worryingly, for applicants, there would still be no right of merit appeal to the Land and Environment Court in relation to any conditions imposed as a consequence of a section 4.55(1) application. As such conditions may not be in the form sought by a developer (and may be more burdensome than anticipated), a developer would need to be very cautious about submitting any modification application under new expanded section 4.55(1) pathway.
Regretfully, the bill’s proposal to concurrently reduce the scope of section 4.55(1A) will mean that, if that pathway is to be pursued, some change to the development will need to be made that has an environmental impact (albeit one that a consent authority can be satisfied is ‘minimal’).
Alternatively, a developer may still pursue purely procedural changes to a development consent under section 4.55(2). However, section 4.55(2) applications typically have much higher application fees and often subject to public notification requirements.
The Government proposal is well-intentioned, but will introduce new procedural complexities to the selection of an appropriate modification pathway.
It would have been better if:
Regretfully, this is only wishful thinking, unless the bill is amended in parliament.
At present, local councils and the Secretary of the Planning Department only have a limited power to revoke or unilaterally modify a development consent.
Right now, if it appears to:
that any development authorised by a development consent:
the Planning Secretary or local council may revoke or unilaterally modify that consent.
In our experience, this power is almost never exercised.
One reason for this is that the power to revoke or unilaterally modify a development consent has to be triggered by a proposed new state environmental planning policy or local environmental plan. If there is no proposed policy or plan available to justify such a revocation or unilateral modification, the revocation or unilateral modification would lack merit. (There is an appeal right to the Land and Environment Court when this power is exercised.)
The bill proposes to expand this power so that:
The power does not currently apply to Court granted development consents, or consents granted by the Planning Minister. This exclusion will be retained.
The existing (limited) compensation provision would be retained. That is, if a development consent is revoked or modified under this power, a person aggrieved by the revocation or modification is entitled to recover from:
compensation for expenditure incurred pursuant to the development consent that is rendered abortive by the revocation or modification of that consent.
Significantly, there is no compensation for any loss in land value as such. A landowner who had obtained a development consent, but had not yet made any expenditure in reliance on that consent, may find their land value significantly reduced by the revocation of the development consent, but have no compensation rights.
Similarly, a condition in a development consent condition could be unilaterally modified by a local council (after the local council decided that the original condition was inappropriate, having regard to the existing local environmental plan). The revised condition may be more costly or burdensome. However, if the expenditure made by the developer is not rendered abortive by the modification, the developer would not be compensated for the extra costs or lost income arising from the modified condition.
If a development consent is revoked, or made less viable by a change in a condition, the position of a secured financer who had advanced funds (based on a land valuation that was dependent on the development consent) would be at risk. (To receive compensation, it would be necessary for the financer to show that the advancing of funds was expenditure incurred pursuant to the consent and that expenditure was rendered abortive by the revocation or modification of that consent. Such an argument would likely be subject to extensive legal debate.)
This change does represent a significant weakening in the certainty that is offered by a development consent (when it is granted by someone other than the Land and Environment Court or the Planning Minister).
The bill proposes some renovation of ‘section 4.15(1)’ of the EP&A Act.
This provision is central to the assessment of development applications, as it sets out a wide range of matters that must be considered, where relevant.
Among other things, the provision requires that a consent authority must consider the ‘likely impacts of …[the] development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.’
The bill proposes that this provision be amended to only require consideration of the significant likely impacts of the development.
The Planning Minister, Mr Scully, says that ‘currently, too much time and effort are spent on minor or irrelevant matters that have little impact on the final decision’.
The Government’s desire to make this change may be motivated by the recent decision of the Court of Appeal in Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v Mach Energy Australia Pty Ltd [2025] NSWCA 163.
In that matter the Court of Appeal found that the Independent Planning Commission breached the law, by not considering the impact of carbon emissions in the locality that would be generated by the burning of coal mined from Mount Pleasant Coal Mine. The Commission had considered those carbon emissions, but only in terms of their global impact.
This change to section 4.15(1) would probably have meant that the Independent Planning Commission would not have broken the law, because the local impacts of the carbon emissions generated from the burning of the mined coal would not be significant.
However, this change has the potential to also lighten the assessment load for urban development when a consent authority is asked to consider minor impacts that are not specifically called-up for consideration under an environmental planning instrument.
For example, minor changes in traffic generation and traffic patterns might not need to be considered under this revised provision.
Having said all this, at the same time, the bill proposes to create an additional power for a development consent to be granted subject to a condition that arises from a likely impact of the development the subject of the consent. This new power is not limited to only ‘significant’ likely impacts. This provision allows a consent authority to consider non-significant likely impacts, but manage those impacts by way of condition.
The bill also proposes to address a long-standing issue in development assessment.
It is commonplace for development applications to seek development consent for the development of a site, but not seek development consent for off-site works, such as access works, road reserve works and stormwater/drainage/sewer/water connection works.
However, the courts have held that a clear indication that no development approval is sought for the off-site works does not remove the need for development application documents to depict the works that would ultimately need to be carried out (for which development consent is not sought).
Under the current case law, a consent authority must take into consideration the likely off-site impacts caused by other development not the subject of a development application, but that has a ‘real and sufficient link’ with the proposed development (Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349).
The bill addresses this issue by saying that the significant likely impacts of other development — for which consent is not sought in the development application — are not of relevance to the development the subject of the development application.
This means that, if the bill becomes law, there will be no need for an assessment of works that are not proposed for approval under the development consent sought, but whose approval will be dealt with by some later separate process.
The bill makes a major change to the definition of ‘development standards’.
The bill provides for the deletion of the current definition of a ‘development standard’, such that a requirement by a local environmental plan or a state environmental planning policy will only be regarded as a ‘development standard’ if it is identified as such a standard in the relevant plan or policy.
This is very significant, as it will affect how ‘clause 4.6’ works.
A ‘clause 4.6 request’ is a request to carry out a development (proposed in a development application) in a way that contravenes a development standard set out in a local environmental plan or a state environmental planning policy.
The legal mechanism is set out in clause 4.6 of standard-instrument compliant local environmental plans. Hence its name.
Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that:
Clause 4.6 serves a critical role in the planning system. It is a vehicle for overcoming rules that, in a general sense, may work well, but have a limited or poor application to a particular site.
Clause 4.6 can only be used to permit the contravention of a ‘development standard’. It cannot be used to contravene a prohibition.
There has been decades of legal debate in the courts about what constitutes a development standard and what constitutes a prohibition.
In recent years, the pattern of court decisions has taken a fairly generous approach as to what is a development standard. Generally speaking (outside the outright prohibitions in a ‘land use table’), almost all provisions in local environmental plans and state and environmental policies would be regarded as ‘development standards’ under the current law.
This includes non-numeric requirements that may not typically be thought of as ‘development standards’ by local council officers. For example, requirements that particular services or facilities be made available for a development or requirements for a particular design outcome for a development are currently defined as ‘development standards’.
At present, the ‘Standard Instrument’ allows, on a case-by-case basis, certain development standards to be expressly excluded from clause 4.6.
However, the bill reverses this arrangement. The bill proposes two new definitions of ‘development standards’. One for immediate introduction and one for later introduction.
Under the definition that is to be introduced later, any requirement in a local environmental plan or state environmental planning policy that is not expressly identified as a ‘development standard’ will not be capable of being contravened under clause 4.6.
This reversal of the onus will make it very easy — as local environmental plans and state environmental planning policies are revised — for requirements to be excluded from the safety net of clause 4.6.
We think that non-numeric development standards which are generally currently covered by clause 4.6 may readily fall-out of this regime (under the new long-term definition of ‘development standards’ proposed in the bill). Examples include standards relating to matters such as:
Going forward, once the new definition of ‘development standards’ is fully implemented —as new requirements are inserted into local environmental plans and state environmental planning policies — it will be very easy for local councils or the Planning Department to (by accident or design) not label them as ‘development standards’. If this happens, clause 4.6 requests will not be able to be upheld in relation to those provisions.
The EP&A Act provides for ‘non-discretionary development standards’.
This name is misleading as the purpose of such development standards is to set out standards that — if complied with — prevent the consent authority from requiring more onerous standards for those matters.
Non-compliance with these particular development standards does not prevent development consent being granted. In short, these development standards limit the discretion of the consent authority, but do not limit the freedom of the developer.
Non-discretionary development standards are used to facilitate development such as residential flat buildings, co-living housing, affordable housing and seniors housing.
At present, if a proposed development does not comply with a non-discretionary development standard (even to a minor extent), the development is evaluated against the controls that would otherwise apply. For example, more onerous standards in a local environmental plan or a development control plan would be the relevant benchmark.
The bill addresses this by proposing that where a non-discretionary development standard is not satisfied, it will be a relevant consideration. A development consent could still be granted if the non-discretionary development standard is not met (and a clause 4.6 request would not be required). However, in carrying out the development assessment:
In most circumstances, this change is likely to benefit development applicants.
At present, local councils and the Planning Secretary can issue a development control order that requires a development to be completed if:
Such an order is known as a ‘complete works’ order.
This existing regime typically allows a developer five years from the date of the operation of a development consent before the developer is at risk of a ‘complete works’ order. This is because the standard period for the lapsing of a development consent is five years. (If a development consent is subject to a reduced lapsing period, a complete works order could be issued sooner.)
The bill proposes a significant change to the status-quo.
The bill proposes that a local council or the Planning Secretary would be able to issue a ‘complete works’ order at any time after the works have been commenced.
It would be a criminal offence not to comply with such an order.
A person who received such an order would have a right to appeal to the Land and Environment Court within 28 days of receiving it and could, once the matter is appealed, apply for a ‘stay’ (suspension) of the order.
This change may make life more difficult for developers, particularly for staged developments or when they are experiencing financial difficulties.
Complying development certificates are an existing alternative to a conventional development consent.
A complying development certificate can be issued by a registered certifier (in lieu of a development consent granted by a local council).
Typically complying development certificates are only available for small-scale or low impact development. For example, they can be used for single dwellings, dual occupancies, terrace housing and small two-storey residential flat buildings, but not for erection of new (three storey or more) residential flat buildings.
A current flaw of the complying development certificate regime is that all of the relevant standards must be satisfied for a complying development certificate to be issued. If even one standard is not satisfied — no matter how good the reason — a full development application has to be lodged with the local council.
The bill proposes to address this by allowing an applicant to apply to their local council to obtain a ‘variation certificate’. Such a certificate would authorise the varying of a development standard. However, only development standards that are identified as being able to be varied in an environmental planning instrument (such as state environmental planning policy) can be the subject of variation certificate. No information has been released at this time as to how wide-ranging the ability to vary standards would actually be.
An environmental planning instrument may also set outer limits on the extent of any variation.
When an application for a variation certificate is made, a local council would be precluded from undertaking a general merit assessment of the proposed development. The council could only consider matters relating to the development standard that is sought to be varied.
If the local council is only being asked to consider the application for the variation certificate (with a registered certifier separately engaged to issue the complying development certificate), the variation certificate would be deemed to be approved if the variation certificate application has not been determined within 10 days.
There is no appeal right to the Land and Environment Court from any decision by a local council to refuse an application for a variation certificate. This means that there will be no incentive for a local council to actually approve variation certificate applications — or give such applications any serious consideration. We expect that the rate of refusal of such certificates will be very high. Given the ‘deemed approval’ arrangement, it can be expected that refusals will be routinely issued within 10 days.
It is unclear why the Government thinks that, in the absence of an appeal right, this would be an effective measure.
The bill also proposes to improve the process of modifying a development the subject of a complying development certificate. At present, when such a modification is needed, the process for the issue of a new complying development certificate need to be repeated for the whole development. The bill would allow the registered certifier to issue a new certificate and, in doing so, only having to deal with the part of the development that is proposed to be modified.
A community participation plan is the document that sets out when applications need to be notified, and the extent of the notification that is required.
Under the bill, all existing local council ‘community participation plans’ will be set aside and replaced with a single statewide community participation plan published by the Planning Department. This plan has not yet been prepared.
The Planning Minister, Mr Scully, says: ‘This reform is about consistency. It is about clarity. The new statewide community participation plan will be prepared by the Planning Secretary. This will allow the Planning Secretary to provide appropriate exhibition time frames for different planning matters, based on their impacts.’
‘Consultation periods can vary from one week to four weeks. In some cases, members of the public are being asked to comment on matters so minor they barely register as development at all, such as decks, earthworks and retaining walls. This is not sound planning, and it is often used to prevent and preclude rather than create and construct.’
‘This is a commonsense reform that brings consistency, improves efficiency, protects and promotes community participation for the issues that matter most, so that it is valued and valuable, not criticised for using small matters to hold up proposals that have substantive benefit,’ Mr Scully said.
It can be expected that, in some local government areas, there will be an increase in notification requirements. In other areas the burden of notification requirements will be reduced.
However, in areas where development is already bitterly controversial, the community participation plans already generally err on the side of the more extensive public notification requirements. Accordingly, in those areas, the requirements are likely to be similar or reduced.
The bill will allow the Secretary of the Planning Department to publish a notice on the NSW planning portal that specifies the form and content of documents that are required to be submitted with a development application.
The Planning Minister, Mr Scully, says that ‘this means that consent authorities, including councils, will be required to request consistent and wholly relevant information.
‘It will be clear from the outset what information applicants need to submit, reducing delays and confusion and making sure applications are high quality and assessment ready,’ Mr Scully said.
At present the ‘Housing Delivery Authority’ merely has the status of a panel established by the Minister under the EP&A Act.
The bill amends the EP&A Act, so that the Authority exists under the Act itself, rather than by a mere ministerial order. There is no great practical significance to this change.
The Planning Minister, Mr Scully, says that the bill ‘will embed the [Housing Delivery Authority] into the Act, making it a permanent, but still optional feature of the NSW planning system, to give confidence to proponents of large projects that these projects will be assessed within a State significant pathway, offering clear time frames and greater certainty’.
There are a range of other changes. These include:
The bill contains some measures that should be generally welcomed by property developers and their consultants, namely:
However, as is so often the case with any effort to ‘reform’ land use planning, there are some serious stings in the tail. Some of the changes that should cause property developers concern include:
There remains potential for the parliament to change (or even block) the bill before it becomes law.
This means the reforms may be improved, or may made worse, before they are finalised.
Additionally, it is not yet clear when the reforms will commence.
The reforms might be commenced on a staggered basis.
Some reforms could be commenced almost immediately (e.g. before the end of the year). Other reforms would require some detailed work in preparing regulations and/or new state environmental planning policies. Time may need to be allowed for local councils and the state government to amend business processes and update information technology systems. Those aspects of the reforms may not commence for some time.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
