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  • 14Nov

    Environmental Planning and Assessment Amendment Bill 2017 (NSW)

    On 18 October 2017, the Environmental Planning and Assessment Amendment Bill 2017 (“the Bill”) introduced substantial amendments to the Environmental Planning and Assessment Act 1979 (“EPA Act”) for debate in the NSW Legislative Council.

    The Bill is the culmination of an extensive public consultation process spanning from 2016 to 2017, including the public exhibition of a draft bill earlier this year. Following the receipt of over 470 submissions in response to the draft bill, the amendments were further refined.

    The Bill had not passed at the time of publication of this update.

    Just some of the key proposals are outlined below.

    New objects

    The Bill updates the overarching objects of the EPA Act by introducing the following new objects:
    • To promote good design and amenity of the built environment;
    • To promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage); and
    • To promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants.

    Community Participation Plans

    The proposed revised Part 2 of the EPA Act consolidates the provisions relating to the administration of planning authorities and proposes revised community participation requirements, including the preparation of Community Participation Plans (“CPPs”). 

    Under this revised framework, planning authorities will be required to prepare CPPs which detail how and when they will undertake community participation when exercising relevant planning functions. Planning authorities subject to these requirements include the Minister, the Planning Secretary, the Greater Sydney Commission, the Independent Planning Commission (formerly the Planning Assessment Commission), Sydney District or Regional planning panels, Councils, local planning panels, determining authorities under Part 5 of the EPA Act, and any public authority prescribed by regulation.

    Relevant planning functions include those relating to the making of planning instruments under Part 3 and development consents under Part 4, among others. The proposed Schedule 1 then specifies the required exhibition periods and notification requirements

    Local Strategic Planning Statements

    The Bill also provides for legislative recognition of councils’ local strategic plans. As part of the revisions to Part 3 of the EPA Act, Councils will be required to prepare Local Strategic Planning Statements (“LSPSs”) which identify the basis for strategic planning and planning priorities for the area, as well as the actions required to achieve them.

    A standard format for development control plans (“DCPs”)

    The Bill also targets the lack of standardisation among DCPs across the state. At this stage, however, the Bill only provides that the accompanying regulations may make specifications in relation to the standardisation of DCPs. As a result, the nature and format of any proposed standard DCP will not be known if or until the Bill is passed and/or the regulations are released.

    Power to strike down construction certificates

    Clause 6.32 of the Bill provides the Land and Environment Court of NSW (“the Court”) with the power to declare a certificate issued pursuant to the EPA Act invalid where such a certificate is inconsistent with the terms of the development consent and proceedings are brought within 3 months after the certificate is issued. This amendment addresses recent developments in case law which have allowed parties to rely on construction certificates which are inconsistent with the development consent, such as the decision of the NSW Court of Appeal in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404.

    Changes to complying development

    As one of a number of changes proposed to complying development, the system of Voluntary Planning Agreements will be extended to complying development. State Infrastructure Contributions may also be required in respect of complying development.

    In addition to this, Councils will be empowered to require a person to stop work under a complying development certificate for a period of 7 days while compliance investigations are undertaken. The Court will also be able to strike down a complying development certificate which does not comply with development standards.

    Enforceable undertakings

    Under a new Part 9 of the EPA Act addressing enforcement and compliance measures, the Secretary of the Department of Planning and Environment (“the secretary”) will have the power to enter into enforceable undertakings with perpetrators of a breach of the EP&A Act. These undertakings allow regulators, including Councils, to negotiate with a perpetrator of a breach of the EPA Act on an appropriate response to the breach including the recovery of profits gained from the breach, compensation to affected parties and remedying or making good on damage to natural or built environments. Regulators will be able to make recommendations to the secretary in relation to accepting undertakings after conducting negotiations with the perpetrator. The secretary will also be empowered to apply to the Court for orders where the terms of the undertaking are not complied with.  

    A step-in power for integrated development

    The secretary will have a step-in power to act on behalf of an approval body in respect of integrated development which allows the secretary to inform the consent authority whether or not approval will be granted or provide the general terms of approval in circumstances where the approval authority fails to do so or the general terms of approval of 2 or more approval bodies conflict.

    Structure

    Lastly, the Bill also proposes a complete overhaul of the structure of the EPA Act, including the conversion of the existing 8 Parts structure into 10 Parts and the introduction of a decimal numbering system.

    For further information on these proposed amendments to the EP&A Act, please contact Adam Seton on aseton@marsdens.net.au or David Baird on dbaird@marsdens.net.au  (02) 4626 5077.

    The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Marsdens Offices