Australia: Concurrence and referrals: New step in powers for the NSW Planning Secretary

Last Updated: 15 March 2019
Article by Breellen Warry

Most Read Contributor in Australia, July 2019

As part of the recent reforms to the Environmental Planning and Assessment Act 1979 (the EP&A Act), the Secretary of the Department of Planning and Environment (the Planning Secretary) was given new step in powers to seek to prevent delays to applications and resolve disputes between agencies for integrated development. 

Until now however, nothing in the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) authorised the Planning Secretary to exercise these powers, as required by the EP&A Act.

Amendments to the EP&A Regulation have now been published which authorise the Planning Secretary to step in, in certain circumstances. The relevant state assessment requirements have also been published which set out the matters that should be considered by the Planning Secretary when acting on behalf of an approval body. 

In addition, the State Environmental Planning Policy (Concurrences) 2018 (Concurrence SEPP) has now commenced. 

This is a welcome change for those who are frustrated by any delays in obtaining general terms of approval or a requisite concurrence. In this article we outline the Planning Secretary’s new powers. 

Concurrences and referrals

About 15 per cent of all development applications need to be referred to various state government agencies because the development requires some form of approval under additional legislation. For example, this could be an environmental protection licence from the Environmental Protection Authority or an approval from the Roads and Maritime Services to dig up a public road. Otherwise, an environmental planning instrument might require a state government agency to grant its concurrence to an application before it can be determined by the relevant council.

The first category of development applications are referred to as integrated development. The second category is referred to as development which require concurrence.

Where an application is for integrated development the council must refer the application and the associated fee to the relevant agency for its general terms of approval (GTAs). If consent is granted by the council the GTAs become conditions of development consent.

The provisions in the EP&A Act were introduced to seek to streamline the provisions for development applications that required state government agency approval.

However, in time, they have become a considerable source of frustration for both applicants and councils and both see state government agencies as a considerable source of delay in the planning system. An analysis in 2008 showed that referrals to state government agencies added an additional 48 days to the processing time of development application.

Even though the provisions in the EP&A Act would allow a council to determine an application after a reasonable period of time without the approval of the relevant agency, most councils are reluctant to do so.

Since 2008 the NSW Government has had a program of seeking to remove unwarranted government referral requirements from the NSW planning system.

New step in powers for the Planning Secretary

Integrated development

As part of the program to seek to improve the operation and performance of state government agencies, the Planning Secretary was given new powers to step in to seek to reduce delays and resolve disputes between agencies as part of the recent planning reforms.

For integrated development, section 4.47(4A) of the EP&A Act provides that the Planning Secretary may act on behalf of an approval body for the purposes of informing the consent authority whether or not the approval body will grant its approval or GTAs.

The circumstances where the Planning Secretary may step in are now provided for in the EP&A Regulation in new clauses 70AA – 70AC, being where:

  • the approval body has failed to inform the consent authority with the relevant assessment period, whether or not the approval body will grant the approval or of the GTAs; or
  • there is an inconsistency that has been identified by the consent authority in the GTAs of two or more approval bodies.

The relevant assessment period is either 40 days from where the application has been forwarded to the relevant State government agency or 21 days from the date on which submissions are forwarded to the relevant government agency in the case of development required to be advertised.

In providing her concurrence or approval the Planning Secretary must have regard to the Secretary’s Assessment Requirements for Development Requiring General Terms of Approval. These have been published on the NSW planning portal. These Requirements contain “general principles for stepping in”, which include that approval bodies should retain primary responsibility for issuing GTAs and the Planning Secretary should only step in after the parties have made a genuine attempt to resolve the issues. 

New requirements in the EP&A Regulation give the Secretary the power to require additional information from applicants and give the general terms of approval to the relevant consent authority.

Development requiring concurrence

In respect of development that requires concurrence under an environmental planning instrument, the NSW Government has published State Environmental Planning Policy (Concurrences) 2018 (the Concurrence SEPP).

The Concurrence SEPP would allow the Planning Secretary to elect to be the concurrence authority for certain development that required concurrence under nominated State environmental planning policies including the Infrastructure SEPP and the Growth Centres SEPP.

As with integrated development, the Planning Secretary may only elect to be the concurrence authority where more than 40 days from where the application has been forwarded to the relevant state government agency or 21 days from the date in which submissions are forwarded to the relevant government agency in the case of development required to be advertised.

Online concurrences and referrals through the NSW planning portal

The Department of Planning and Environment has also launched a new online concurrence and referral service through the NSW planning portal.

The new service would allow an applicant to lodge a development application with certain nominated councils across the state, or for a council to refer an application which requires either concurrence or is for integrated development to the relevant state government agency.

Importantly for applicants and councils the new system would facilitate online payments and enable both the applicant and the council to track the progress with the relevant agency.

Agencies themselves can also use the system to manage requests.

To facilitate the online system changes have been made to the EP&A Regulation to provide for online communication between applicants, councils and agencies to be made through the portal and to enable the applicant to be notified of the fee payable through the portal.

The new online system is not mandatory at the moment. The intention is that the system should be used by all councils and all relevant Stage government agencies by 1 January 2020.

What these changes mean

Developers or consent authorities experiencing delays in obtaining GTAs or a requisite concurrence should consider referring their development applications to the Planning Secretary requesting that the step in powers be exercised. 

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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