Reform of the Environmental Planning and Assessment Act 1979

The Environmental Planning and Assessment Amendment Bill 2017 proposes significant changes to planning law in NSW.

On 18 October 2017, the NSW Government introduced into parliament the Environmental Planning and Assessment Amendment Bill 2017 (EPA Bill).  The Bill proposes a wide range of legislative reform to the Environmental Planning and Assessment Act 1979 (EPA Act).

The key changes are outlined below.

Community participation

All councils and New South Wales development agencies will be required to prepare a community participation plan explaining how they will engage the community in plan-making and development decisions. Certain decisions, such as Ministerial determinations about State significant infrastructure, and consent authority decisions about development applications, will be required to be made publicly available. Reasons for these decisions will also need to be made public.

Strategic planning and planning instruments 

  • Local strategic planning statements – councils will be required to prepare local strategic planning statements to inform future planning proposals in their locality. The local strategic planning statements will be prepared with input from councillors and the community, and are required to be consistent with any strategic plans applying to the area. Local Environment Plans will be required to reflect the local strategic planning statements in its aims and objectives.
  • Standard format development control plans – councils will be required to prepare development control plans (DCPs) that are consistent with a standardised format. The requirements as to the form, structure and subject-matter of DCPs will be published at a later date. This change will allow relevant provisions from DCPs to be displayed on the NSW Planning Portal.

Development assessment and consent 

  • Complying development –  the EPA Bill proposes to allow the Environmental Planning and Assessment Regulations to specify the kind of development for which an accredited certifier is not authorised to issue a complying development certificate. The EPA Bill also proposes to allow complying development certificates to be issued subject to a deferred commencement condition, and gives power to the Land and Environment Court to declare a complying development certificate invalid. Council officers will also be able to suspend the carrying out of work under a complying development certificate for up to 7 days to investigate complaints.
  • Step-in power – the Planning Secretary will be given the power to act on behalf of an approval body, in the case of integrated development, to determine whether or not the approval body will grant the approval, or of the general terms of its approval. The Planning Secretary can exercise this power if the approval body fails to make the determination or because of an inconsistency in the general terms of approval.
  • Compliance levy – councils will be able to recoup costs incurred in investigating and enforcing compliance with development consents and complying development certificates.
  • Date from which development consent has effect – a development consent will have effect on and from the date it is registered on the NSW Planning Portal. The date of effect is delayed for designated development.

Building and subdivision certification 

  • Changes to construction certificates construction certificates will be certificates for building work only, and subdivision works certificates will be certificates for subdivision works only.
  • building information certificates are the new name for building certificates.
  • building manual must be provided to the owner of a building before an occupation certificate can be issued – the requirements of the building manual are to be in the regulations.
  • Invalidity of certificates – the EPA bill proposes to allow the Land and Environment Court to declare that a construction certificate, subdivision works certificate, subdivision certificate, or compliance certificate is invalid if it is not consistent with the development consent (to overturn a previous decision in the New South Wales Court of Appeal).
  • New appeal rights – applicants will be able to appeal against failure or refusal of a council to issue a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate.

Other miscellaneous changes

  • Concurrence requirements for public authorities – Development undertaken by public authorities under part 5 of the EPA Act will require concurrence from other public authorities before work can commence within infrastructure corridors set aside for future major roads, railways and other linear infrastructure.
  • Infrastructure contributions – State infrastructure contributions can be required for complying development.
  • Improvements to the Planning Assessment Commission – the Planning Assessment Commission (PAC) will be relaunched as the Independent Planning Commission (IPC). The EPA Bill proposes to remove the IPC’s review function (it currently reviews State significant proposals and may then later determine the same proposals).
  • Restructure and renumbering – the EPA Act will be restructured into 10 parts, with all provisions reorganised and renumbered.

The EPA Bill and related documents can be accessed here.

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.