By Aaron Gadiel, Partner

On 1 March 2022 new planning rules will come into effect — introducing new protocols for planning applications, strengthening the right of objectors to be informed and repealing 43 state environmental planning policies.

The NSW Government is repealing and re-enacting a wide range of planning regulations and state environmental planning policies.  The changes were published late last year, but will come into effect on 1 March.

The changes involve:

• the repeal of the Environmental Planning and Assessment Regulation 2000 and its replacement with the Environmental Planning and Assessment Regulation 2021; and
• the repeal of 43 state environmental planning policies (SEPPs) and the consolidation of their existing provisions into 11 new SEPPs.

Superficially the changes look far-reaching.  However most existing rules will simply be re-enacted in new legal documents (with some modest changes to legal wording).

This article briefly focuses on some of the more notable substantive changes.

Amendment of development applications and modification applications

Almost all development applications (and many modification applications) are amended before they are determined.

This will typically follow the issue of one or more ‘requests for further information’ by a consent authority.  In a Land and Environment Court appeal, an amendment will typically follow the issue of a ‘statement of facts and contentions’.

The amendment of development/modification applications is a vital tool to address the concerns of a consent authority in way that preserves the viability of the proposed development.  In a contested Court appeal, amendments generally seek to reduce the cost and complexity of any Court hearing by narrowing the issues in dispute.

Outside of a Court appeal, amendments tend to be made in a fairly ad-hoc way.  Often they are submitted by email to the local council — and either the applicant or the local council will load the documents onto the NSW Planning Portal (a website).

Outside of a Court appeal, an amendment is not legally effective until it has been agreed to by the consent authority.  There can sometimes be uncertainty as to whether an amendment has been agreed, because consent authorities often do not inform applicants as to their decision.

For new development applications made from 1 March, applicants will need to make an ‘application’ for an amendment through the NSW Planning Portal.  This change will take effect for all modification applications (even if lodged before 1 March) on the same date.

A consent authority may approve or reject an application for an amendment to a development application or modification application, via the NSW Planning Portal.  This would appear to erect some extra red tape, but at least it will allow greater certainty as to whether an amendment has been allowed.

The requirement to submit proposed amendments (and decisions on the same) through the NSW Planning Portal will not apply for development applications in the midst of a Court appeal.  However (for no obvious reasons) it will apply for amendments to modification applications that are the subject of a Court appeal.

‘Deemed refusal’ appeals to the Land and Environment Court

Local councils almost never meet the existing statutory benchmarks for determining development applications.  The benchmark (for non-state significant applications) is set as 41 or 61 days, measured from lodgement.  (Which benchmark applies depends, in part, on whether the application is for integrated development or requires a state concurrence).

The failure to meet this benchmark triggers a right to a ‘deemed refusal’ appeal to the Land and Environment Court (subject to any ‘stop-the-clock’ events).  Often this can be the only way to force the timely assessment of an important development application.

The new regulations make two changes in relation to development applications initially made from 1 March.

Firstly, the benchmark is reduced to 40 or 60 days.  (The benchmark is often casually described as 40 or 60 days at present, but the day after the lodgement date is currently excluded.  This exclusion ends for development applications made from 1 March onwards.)

Secondly, at present, whenever the consent authority agrees to allow an amendment to the application, the ‘clock’ on the 41 or 61 days is reset to zero.  For development applications made from 1 March, the clock will only be-reset if the consent authority:

• considers the amendment is not minor; and
• notifies the applicant, by the NSW Planning Portal, that the lodgement date for the application is now taken to be the date on which the application for the amendment was made.

The general effect of this change is as follows:

• Making a minor amendment to a development application should not re-set the ‘clock’. This means that an applicant may need to move more quickly to commence any Court appeal.  This is because a deemed refusal appeal right that arises from 26 March 2022 or later sunsets six months after it arises.  If the ‘clock’ is not re-set on an amendment, this six-month period will be measured from when the appeal right originally arose, which in turn will be measured from the original application lodgement date.
• Making a major amendment to a development application will not necessarily re-set the ‘clock’. This is because a consent authority may decide not to notify the applicant of a change in the deemed lodgement date.  This choice was not previously available to a consent authority who had allowed an amendment to an application.  Again, this means that an applicant may need to move more quickly to commence an appeal (as the ‘deemed refusal’ appeal right will again expire earlier than it would under the same circumstances in the past).

Some similar changes have been made in relation to the ‘deemed refusal’ of amended modification applications.  However, these changes will (for no apparent reason) apply to applications made before (as well as after) 1 March.

New power to reject modification applications within 14 days

Consent authorities have long had the right to reject development applications on procedural grounds within 14 days of receiving the application.

Consent authorities (ie local councils) have also long resented the fact that they did not have a similar power to reject modification applications on procedural technicalities (before any merit assessment).

A sustained lobbying effort by local government seems to have finally paid-off.  From 1 March consent authorities will be able to reject modification applications within 14 days of their receipt — if they fail to meet certain procedural and presentational requirements.

Objectors right to be informed

A consent authority will, for development applications made from 1 March, be obliged to send a copy of the notice of determination to anyone who made a submission about the application under the planning law.

While some local councils choose to do this at present, the practice will soon be mandatory.

Statutory fees

Fixed dollar maximum fees charged under the planning legislation will, for the first time, be automatically indexed, in-line with the consumer price index from 1 July 2023.

SEPP rationalisation

In a house-keeping measure, 43 SEPPs will be repealed on 1 March.

However, generally speaking, there are not any substantive changes to the legal provisions.

This is because the contents of the repealed SEPPs will be transferred into 11 new SEPPs.

The new SEPPs (and the SEPPs that they replace) are listed below:

The State Environmental Planning Policy (Biodiversity and Conservation) 2021 will replace:

• State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017;
• State Environmental Planning Policy (Koala Habitat Protection) 2020;
• State Environmental Planning Policy (Koala Habitat Protection) 2021;
• Murray Regional Environmental Plan No 2—Riverine Land;
• State Environmental Planning Policy No 19—Bushland in Urban Areas;
• State Environmental Planning Policy No 50—Canal Estate Development;
• State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011;
• Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997);
• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;
• Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment; and
• Willandra Lakes Regional Environmental Plan No 1—World Heritage Property.

The State Environmental Planning Policy (Industry and Employment) 2021 will replace:

• State Environmental Planning Policy (Western Sydney Employment Area) 2009; and
• State Environmental Planning Policy No 64—Advertising and Signage.

The State Environmental Planning Policy (Planning Systems) 2021 will replace:

• State Environmental Planning Policy (State and Regional Development) 2011;
• State Environmental Planning Policy (Aboriginal Land) 2019; and
• State Environmental Planning Policy (Concurrences and Consents) 2018.

The State Environmental Planning Policy (Primary Production) 2021 will replace:

• State Environmental Planning Policy (Primary Production and Rural Development) 2019; and
• Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas).

The State Environmental Planning Policy (Resilience and Hazards) 2021 will replace:

• State Environmental Planning Policy (Coastal Management) 2018;
• State Environmental Planning Policy No 33—Hazardous and Offensive Development; and
• State Environmental Planning Policy No 55—Remediation of Land.

The State Environmental Planning Policy (Resources and Energy) 2021 will replace:

• State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007; and
• Sydney Regional Environmental Plan No 9—Extractive Industry (No 2—1995).

The State Environmental Planning Policy (Transport and Infrastructure) 2021 will replace:

• State Environmental Planning Policy (Infrastructure) 2007;
• State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017;
• State Environmental Planning Policy (Major Infrastructure Corridors) 2020; and
• State Environmental Planning Policy (Three Ports) 2013.

The State Environmental Planning Policy (Precincts—Central River City) 2021 will replace:

• Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
• Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006;
• State Environmental Planning Policy (Kurnell Peninsula) 1989;
• Sydney Regional Environmental Plan No 24—Homebush Bay Area; and
• State Environmental Planning Policy (Urban Renewal) 2010.

The State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021 will replace:

• Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
• Darling Harbour Development Plan No 1;
• Sydney Regional Environmental Plan No 26—City West;
• Sydney Regional Environmental Plan No 16—Walsh Bay;
• Sydney Regional Environmental Plan No 33—Cooks Cove; and
• State Environmental Planning Policy No 47—Moore Park Showground.

State Environmental Planning Policy (Precincts—Regional) 2021 will replace:

• Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
• State Environmental Planning Policy (Activation Precincts) 2020;
• State Environmental Planning Policy (Kosciuszko National Park—Alpine Resorts) 2007; and
• State Environmental Planning Policy (Gosford City Centre) 2018.

The State Environmental Planning Policy (Precincts—Western Parkland City) 2021 will replace:

• Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
• Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006; State Environmental Planning Policy (Western Sydney Aerotropolis) 2020;
• State Environmental Planning Policy (Penrith Lakes Scheme) 1989;
• Sydney Regional Environmental Plan No 30—St Marys; and
• State Environmental Planning Policy (Western Sydney Parklands) 2009.

Complying development certificates for the first use of premises

Typically development consents for new office, retail and business premises are granted with a condition requiring a further development consent or complying development certificate to authorise the fit out and the first use of the premises.  (In a typical mixed use development, the specific uses/fit out requirements for the ground floor commercial premises are not known at the time that the initial development consent is obtained.)

Until 1 February 2022 the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Exempt and Complying Development SEPP) allowed complying development certificates to be issued (by registered certifiers) to authorise the first use of commercial premises (Subdivision 3 of Division 1 of Part 5).

However, these provisions were quietly deleted by the State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment 2021.  This document was published just before Christmas (17 December 2021).

Speaking generally, in some circumstances, the authorisation for the first use of new retail, business or office premises will need to be secured by a development consent.  In other circumstances there may be workarounds. Nonetheless, on first glance, some of the workarounds are less than straightforward.

In short

In general terms, we consider that the above changes are a minor net negative for development proponents.  Consent authorities will enjoy marginally more power and discretion on some procedural matters and objectors to development will gain an additional right to be proactively supplied information.

However, the most striking change — the re-organisation of the legal documents — is only superficial.  Nonetheless, the document re-organisation is likely to create transitional issues for some planning practitioners — who may initially struggle to locate old provisions in the new documents.