Australia: NSW planning reform on the cards for 2017

What you need to know

• Seeking to introduce a number of changes to the NSW planning system, the NSW Government has released a draft bill that is open for public consultation until 10 March 2017.
• The proposed changes are wide-ranging and include some that represent an attempt to more closely control, monitor and enforce compliance with planning laws and development approvals.
• If you have an interest in planning and development in NSW, now is the time to ensure you understand how the proposed changes might affect you and consider whether you wish to lodge a public submission on the draft bill before 10 March.

The NSW Government has released a consultation draft of a bill to amend the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act).

The draft bill follows the failure of the Planning Bill 2013 and Planning Administration Bill 2013 to be passed by NSW Parliament in 2013/2014. Since then, the Government has used its executive and legislative powers to reform planning with such initiatives as the creation of the Greater Sydney Commission and District Plans, as well as the expansion of the exempt and complying development provisions.

The draft bill is open for public comment until 10 March 2017.

What key changes does the draft bill propose?

Objects of the Planning Act refined

The objects of the Planning Act will be refined to have a greater focus on design in the built environment, as well as housing choice and community participation.

Greater role for planning panels

The Planning Assessment Commission will be renamed as the Independent Planning Commission (IPC). Existing regional and district planning panels will remain to determine development applications over a threshold value. Councils will also formally be able to create local planning panels for their local government areas. These are to consist of three members, being two independents and a community representative.

The IPC and regional panels will be obliged to consult with Council if a decision they make is likely to have a significantly adverse financial impact on that Council. Further, panels will be able to review their decisions on the request of an applicant, akin to the former section 82A reviews.

Community participation and navigation gets a boost

The draft bill contemplates mandatory community participation requirements in the exercise of planning functions by planning authorities, as well as measures to better enable the public to be notified and to access information. These include:

• minimum notification periods (which are largely the same as existing timeframes, but with the period between 20 December and 10 January excluded from any calculation)
• community consultation to be undertaken by applicants for consent or other approvals – it seems that this is more likely to be applicable to state significant development
• a requirement for the consent authority to provide a statement of reasons for a decision and to indicate how community views were taken into account in making the decision
• a requirement for planning authorities to prepare a community participation plan and to act in accordance with it
• a legislative right for persons to seek to join development appeal proceedings (which largely reflects current case law)
• greater use of the NSW planning portal, with planning determinations and certificates to be placed on the portal and not to come into effect until placed onthe portal
• a requirement for development control plans to follow a standardised template for form (not content), given the large variety of formats currently used in NSW.

Developers to be subject to more rigorous controls

The draft bill introduces some changes that seem minor but together represent an attempt to more closely control, monitor and enforce compliance with planning laws and development approvals.

The changes likely to impact developers include:

• the introduction of conditions requiring security or guarantees for funding of works required under a development approval or if the approval conditions are not met – this could be broad enough to cover unanticipated impacts
• certifiers will be restricted from issuing complying development certificates for sensitive areas where the local impacts are more significant and require a development application instead
• certifiers will be able to issue deferred commencement conditions on certificates to ensure the developer meets certain pre-conditions
• complying development and construction certificates will be able to be challenged by the public or a council more easily, given it is up to the court to decide whether the certificate should have been issued (not whether the certifier acted unreasonably)
• an application for modification of a consent will need to consider the original reasons for the approval of a development – this will be relevant for the "substantially the same development" threshold test and the merit consideration of the application
• modification applications cannot retrospectively approve unauthorised developments
• councils will be able to levy those who apply for complying development certificates with a levy for future investigations or compliance checking
• councils will be able to issue 7-day stop work orders on complying developments to allow an investigation to be made without any reasons or notice
• a future potential requirement for building manuals to be prepared and transferred to future owners, to ensure future owners are aware of compliance requirements.

On the other hand, there are some provisions which could be of assistance to applicants for development. For example:

• there is a proposed provision entitling the Planning Secretary to approve a development despite the absence of a concurrence or other approval (such as for roads or heritage areas), if the relevant agency delays its response. Further, the provision allows for the Planning Secretary to resolve inconsistencies between two or more conditions of those approval bodies by varying the approvals as necessary
• to avoid inconsistencies between the planning approval and other agency approvals, conditions will be able to be imposed that have effect until the approvals under other Acts are obtained.

Want to know more?

Further information about the process for making a public submission on the draft bill, open for comment until 10 March, is available here.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories