On 1 July 2020, the Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2020 came into force, making a number of inoccuous, but important amendments to the Environmental Planning and Assessment Regulation 2000.
The amendments form part of a larger shift towards the NSW Planning Portal (www.planningportal.nsw.gov.au) becoming the central platform for the lodgement and management of development applications.
As a result of the amendments development applications and modification applications are no longer required to be accompanied by written owner’s consent.
Where an application is being made by someone other than the owner of the land, consent from the land owner still needs to be provided. However, no document is required to be uploaded to the NSW Planning Portal which provides evidence of this consent.
Instead, an applicant is required to make a “declaration” confirming that owner’s consent has been obtained to submit the application.
As a consequence of the amendments, where a declaration is made councils can no longer reject development applications (within 14 days of lodgement) on the basis that it has not been accompanied by written owner’s consent.
Whilst these changes seem to be directed at making the application process more streamlined and simple, removal of the mandatory requirement to provide written evidence of owner’s consent may actually make things more complicated as there will no longer be any proof that owner’s consent has in fact been given. This leaves applicants vulnerable in circumstances where an owner later denies having provided owner’s consent.
In our view, it remains open to councils to request evidence of owner’s consent having been granted in cases where it may be in doubt.
Transitional Arrangements
Clause 296 of the amending instrument set out transitional arrangements to allow council to adapt their processes in response to the changes. The amendments now apply in those councils within a “relevant local government area” as defined in the clause (see below for a list of those councils). The amendments will have effect in all other local government areas from 1 July 2021.
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.
