New Environmental Planning & Assessment Regulation: DA Processing to take Longer?

The draft Environmental Planning and Assessment Regulation 2010, currently on exhibition until 5 November (Draft Regulation), proposes some key changes to the NSW development assessment regime.

Importantly for developers, it proposes to change the test for physical commencement of works, so that surveys alone would not be enough to physically commence a development consent. As a consequence developers acting on consents would need to ensure additional work is undertaken (as a bare minimum) to ensure consents do not lapse.

Deemed refusal periods and stop the clock periods for development applications are also proposed to change.

Some key aspects of proposed changes are discussed below.

Speeding up the system?

Although the intention seems to be to speed up application processing, some changes will in fact lengthen the assessment period. The key changes for DA processing are:

• Stop the clock information requests

Requests for additional information would have to be made by councils in the first 21 days after lodgement, and may only occur once. When information is requested, the assessment period will be stopped for a period of 21 days or until the applicant provides the information, whichever comes first. If no information is provided, assessment of the application will continue regardless, after the 21 day period has lapsed.

Councils would also have the option of rejecting DAs which contain insufficient information, within 14 days of receipt. Some councils now routinely (sometimes incorrectly) reject applications at the counter if certain information (such as owner's consent) is not provided up front. This problem is not addressed.

• Immediate referrals for integrated development

Councils will be required to forward each DA to relevant state authorities within two days of lodgement. State agencies will have 21 days from the date of lodgement to assess the DA and decide whether to comment or issue/refuse concurrences and terms of approval for integrated development.

• Increased time to process DAs

In a retrograde move, the Regulation proposes to increase the processing time for DAs, from the current 40 day deemed refusal period. It proposes 50 days for 'simple' DAs, and 90 days for more complex DAs.

There is no sound reason for increasing the processing time for simple DAs. Effectively the amendments would give councils an extra 10 days to process a simple DA which contains all required information. Call us cynical, but we can't fail to note that the main positive impact of this proposal will be to improve councils' reporting statistics!

The 'complex DAs' would include applications for designated development, integrated development, DAs requiring concurrences or threatened species consultation or DAs involving SEPP 65 panels, independent hearing and assessment panels, the Planning Assessment Commission or joint regional planning panels. Combined with a stop the clock request, this would effectively lengthen the deemed refusal period to a possible 132 days – more than four months.

This bid for additional time to assess applications defeats the purpose of streamlining and is unwarranted.

• Documents which must be included in DA: expanded

All DAs will be required to include drawings, roof plans and compliance tables to simplify the assessment process and minimise requests for further information.

• Matters for consideration

A consent authority will be required to take some additional matters into account when assessing a DA. This would include consideration of the scale and nature of the proposed building work when considering whether existing buildings are to be brought into conformity with the Building Code of Australia. This proposal has the positive potential to curb unreasonable requirements to bring an existing building into conformity when only minor alterations or additions are proposed.

Physical commencement redefined

A major problem with the Draft Regulation is its proposal to change the test for the physical commencement of consents, to make it more difficult to establish. Any development consent granted after the date of the new regulation will not be taken to have "physically commenced" if the only work carried out comprises a survey as defined in the Surveying and Spatial Information Act.

While more certainty on this point would be welcome, this proposal will mean more work is required to prevent consents from lapsing.

Planning certificates to change

The regulation also proposes to overhaul the planning certificates. The matters to be listed on a s149(2) basic planning certificate will be reduced to focus on land use and development controls essential for conveyancing. In response to the removal, most of the matters taken off the basic planning certificate list will be added to the requirements for full planning certificates along with any other matters of which the council is aware. This would severely limit the information required to be provided to purchasers.

What it means

The Draft Regulation clearly aims to improve the DA assessment process. While it shortens processing time in some regards (a small reduction in the stop the clock period, and limiting stop the clock requests to only one), it significantly increases the allowed DA processing time.

The aim to encourage applicants to lodge thorough development applications (to avoid the outright rejection or stop the clock request) would be assisted by meaningful pre-DA consultation. This is not something currently offered consistently across all councils, and in many cases it is a futile process.

Some of these proposals will be a concern to applicants and developers as they will legitimise the existing delays.

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