Legislative Updates to the Environmental Planning and Assessment Act

Following closely in step with the Strata Legislation Reforms, almost 40 years after the inception of the EP&A Act, the NSW State government have decided to update the legislation that dictates the planning and development of our State.

The Environmental Planning and Assessment Amendment Bill 2017 was assented to by NSW Parliament last November 2017 and is set to be implemented with steps to transition expected to start as early as March. With many changes taking effect from 1 March 2018 with the majority in force by the end of 2018 and final steps introduced by 2020.

The new Act is almost half the size of the current 1979 Act. Touted as an evolution rather than a revolution by the former Planning Minister Rob Stokes, with an aim to simplify and modernise the planning system.

The changes aim to deliver a clearer, more efficient and transparent system for the assessment of major projects and State Significant Developments in NSW.

The new Act is segmented into ten (10) parts instead of the existing eight (8) retaining similar numbering for parts 3-5 as the current Act, however adopting new section numbers using the decimal numbering system.

The amendments or reforms will include:

  • Local Strategic Planning Statements – Councils will now be required to prepare Local Strategic Planning Statements to establish a twenty (20) year vision for land use priorities and the broader aspirations of the council for its local government area.
  • Community Participation Plans – planning authorities will be required to prepare a community participation plan explaining how it will consult and engage with the community in plan-making and development decisions. Decision-makers will also be obliged to give reasons for decisions when granting consent to development applications.
  • Standardising Development Control Plans (DCPs) – a standardised format is yet to be released.
  • Enforcement of Complying Development – an aim to strengthening community confidence in complying development.
  • New remedies for breaches of the Act – Enforceable undertakings enable breaches of the EP&A Act to be fixed, compensated or efficiently resolved. It is a faster and cheaper regulatory option than prosecuting the original breach of the consent and are a commonly used tool by NSW government agencies.
  • Public Authorities to consult with other authorities prior to starting work on Infrastructure – major road and rail projects, requires consent under the Act including a requirement to obtain the advice or concurrence of agencies, such as Transport for NSW or Roads and Maritime Services.

For ease of reference, on the following page is a table of comparable sections between the old act and the proposed new Act:

Sec 55 Planning proposals Sec 3.33
Sec 76 Development that does not need consent Sec 4.1
Sec 76A Development that needs consent Sec 4.2
Sec 76B Development that is prohibited Sec 4.3
Sec 77A Designated development Sec 4.10
Sec 78A Application Sec 4.12
Sec 79B Consultation and concurrence Sec 4.13
Sec 79C Evaluation Sec 4.15
Sec 80 Determination Sec 4.16
Sec 80A Imposition of conditions Sec 4.17
Sec 82A Review of determination Secs 8.2, 8.3, 8.4, 8.5
Sec 82B Review where development application not accepted Secs 8.2, 8.3, 8.4
Sec 82C Review procedures generally Sec 8.5
Sec 82D Effect of review decisions Sec 8.5
Sec 83 Date from which consent operates Secs 4.20, 8.13
Sec 85 What is a “complying development certificate”? Sec 4.27
Sec 89 Determination of Crown development applications Sec 4.33
Sec 91 What is “integrated development”? Sec 4.46
Sec 93F Planning agreements Sec 7.4
Sec 94 Contribution towards provision or improvement of amenities or services Sec 7.11
Sec 94A Fixed development consent levies Sec 7.12
Sec 95 Lapsing of consent Sec 4.53
Sec 96 Modification of consents—generally Sec 4.55
Sec 97 Appeal by applicant—development applications Secs 8.7, 8.10
Sec 106-109B Existing uses Secs 4.65 – 4.70
Sec 109D Certifying authorities Sec 6.17
Sec 109E Principal certifying authorities Sec 6.5
Sec 110 Definitions (Definition of an Activity – Environmental Assessment) Sec 5.1
Sec 117 Directions by the Minister Sec 9.1
Sec 119D Powers of investigation officers to enter premises Sec 9.16
Secs 121A-121ZS Orders Secs 9.3 – 9.37 and Sch 5
Sec 125 Offences against this Act and the regulations Secs 9.37, 9.50
Sec 149 Planning certificates Sec 10.7
Sec 149A Building certificates Sec 6.26

Some provisions will be moved to schedules and the Regulations where appropriate.

We will aim to keep you informed as to the Regulations once they have been released.

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