New South Wales Planning Quarterly

Updates in NSW housing policy

Since our last update, a number of new policy initiatives and legislative changes have been announced and implemented by the NSW Government and the Department of Planning, Housing and Infrastructure (DPHI) in relation to housing. These include:

• The commencement of the ‘State Significant Rezoning Policy’ which sets out a streamlined pathway for DPHI to identify and evaluate sites considered eligible to be assessed as either a State-led or State-assessed rezoning proposal;
• A new State significant development pathway for major housing approvals in NSW to be overseen by the newly established Housing Delivery Authority; and
• Updates to planning controls in the Transport Oriented Development accelerated precincts.

State significant rezoning policy

In September 2024, as part of the NSW Government’s commitments under the National Housing Accord, the State Significant Rezoning Policy (SSR Policy) was introduced to replace the former Rezoning Pathways Program. The SSR Policy provides a framework for identifying and delivering strategically significant rezonings under two distinct rezoning pathways:

1. State-led rezoning; and
2. State-assessed rezoning proposals. 

To be eligible under the SSR Policy, certain minimum criteria must be satisfied. The criteria and considerations are set out in the SSR Policy and include that:

• The proposal is of State or regional significance or the proposal has been unreasonably delayed in the planning system; and 
• The proposal is able to adequately address the relevant planning legislation, strategic plan, policies and Ministerial Directions.

DPHI will also consider the scale of the proposal, how quickly the project will be realised, the location of the site, and whether utilising this pathway will result in potential time savings or resolve complexities (for example, where there are multiple State agency stakeholders).

An “Evaluation Panel” comprised of appropriately qualified departmental staff and Senior Executives will be responsible for evaluating sites eligible to be assessed under the SSR Policy.

State-led rezoning

According to the SSR Policy, this pathway will apply where ''there is a strategic imperative for State intervention¹'' in leading the rezoning proposal, such as in circumstances where:

• The site is large or at precinct scale;
• There are State significant issues which are complex and best managed by DPHI;
• Where the proposal would be time sensitive (e.g. delivery of a major transit station); or
• Work is ready to be commenced.

Interestingly, the pathway will also apply to State government land holdings of State or regional significance.

DPHI’s State Rezoning team will lead the assessment and preparation of applications under this pathway. It is expected that this pathway will take approximately 270 working days for the rezoning to take place from exhibition, which does not include the approximately 12-month period for the pre-lodgement phase.

State-assessed rezoning proposals

This pathway will apply where a site is strategically important to warrant involvement by the State such as in circumstances where the proposal:

• Is of State or regional environmental planning significance; or
• Has been unreasonably delayed in the planning system. 

Under this pathway, the Department anticipates there being only one landowner who will be the relevant applicant responsible for preparing the application. 

This pathway takes approximately 180 to 205 working days for the rezoning to take place from lodgement, which does not include the 140 working days for the pre-lodgement phase.

New state-led pathway for major housing approvals in NSW

In addition to these state-led and state-assessed rezoning pathways, the NSW Government announced in November 2024 a new streamlined State significant development (SSD) pathway, and SSD with a concurrent rezoning process. This streamlined approval pathway will be available for major residential housing projects and will be led by the new Housing Delivery Authority (HDA).

This State-led pathway will not facilitate stand-alone rezonings which are available under the SSR Policy.

Eligibility criteria

The State-led planning pathway will be available to major residential housing project developments with an estimated cost of $60 million or more in Greater Sydney or $30 million or more in regional NSW.

Oversight by the housing delivery authority

The HDA was formally established on 19 December 2024 by the publication of the Environmental Planning and Assessment (Housing Delivery Authority) Order 2024 (Order). The Order establishes the HDA as a panel under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), meaning it will be housed within and supported by DPHI.

While the HDA will “oversee” the new planning pathway and make recommendations to the Minister, the Minister will remain the consent authority for those developments.

Role of the HDA 

As of 8 January 2025, applicants can submit Expressions of Interest (EOI) to the HDA addressing certain published criteria and requesting that a project be declared SSD. Following a submission, the HDA will first assess the proposal against the objectives of the EOI process which are as follows:

1. Identify high-yield housing proposals;
2. Identify housing projects that can be assessed and constructed quickly;
3. Drive quality and affordable housing; and
4. Complement the SSR Policy.

The HDA must then assess the proposal against the published criteria (available here) and may recommend an approval pathway to the Minister (SSD, SSD and concurrent rezoning, or the existing development application pathway).

Transport oriented development updates

On 27 November 2024, the State Environmental Planning Policy Amendment (Exemptions) 2024 commenced (TOD Pathway Changes Amendment). The TOD Pathway Changes Amendment sets out changes to certain planning pathways and other controls in the Transport Oriented Development “accelerated precincts” so that processes and controls that could conflict with TOD planning controls are streamlined.

Key changes introduced by the TOD Pathway Changes Amendment include:

• A temporary State significant development pathway for residential development applications valued over $60 million (until 30 November 2027);
• The switching off of height and floor space bonuses and the associated SSD pathway for in-fill affordable housing to avoid conflict with planning controls in TOD Accelerated Precincts;
• Removing certain notification, concurrence and referral requirements for local and regionally significant residential development applications within TOD Accelerated Precincts until 30 November 2027; and
• Exemptions from design competitions in certain circumstances (as outlined in the Design Exemption Pathway Advisory Note published here).

New amendment to clarify “single proposed development”

To address the “many practical difficulties ²” raised by the Court of Appeal’s decision in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (Bingman) (summarised here) , the NSW Government introduced amendments to the EP&A Act. 

The amendments to section 4.38 of the EP&A Act have the following effect:

1. Sets up a scheme for the Planning Secretary to determine if a particular development does or does not form part of a single proposed development that is State significant development; and
2. Provides for the creation of regulations as to how the determination of the Planning Secretary can be made, the procedure for making a determination and the circumstances in which the Planning Secretary can make a determination;
3. Allows for validation of anything done (or omitted) to be done prior to the Bill commencing that would have been valid but for the operation of section 4.38(4). This effectively safeguards Part 5 approvals determined prior to 2 December 2024 that would have been in doubt as a result of Bingman.

To date, the Environmental Planning and Assessment (General) Regulation 2021 (EP&A Regulation) has not yet been amended to address the pathway for the Planning Secretary to make a determination with respect to the “single proposed development”.

We expect that such an amendment to the EP&A Regulation will clarify when and in what circumstances the Planning Secretary may make such a determination.

Net positive outcomes with new Biodiversity Offset legislation

In July 2024, the NSW Government published the NSW Plan for Nature (outlined in our previous instalment of the NSW Planning Quarterly issue here). This was a response to the findings of both the independent review of the Biodiversity Conservation Act 2016 (BC Act) and the statutory review of the native vegetation provisions of the Local Land Services Act 2013 (LLS Act) handed down in August 2023. The NSW Plan for Nature committed to incorporating a ‘nature positive’ approach in the BC Act and associated legislation.

On 15 August 2024, the first package of legislation implementing this approach was introduced to Parliament in the form of the Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024 (Offsets Bill).

Following significant consultation and referral, the Offsets Bill received assent on 2 December 2024 and will commence on a day to be appointed by proclamation.

Some of the key changes include:

1. Formalisation of the ‘avoid, minimise and offset’ hierarchy – a new definition of the ‘avoid, minimise and offset hierarchy’ will be inserted in the BC Act, requiring the proponent to first take ''all reasonable measures” to avoid the impacts, then minimise those impacts not able to be avoided, before finally offsetting or compensating for any residual impact on biodiversity values.
2. Scheme to transition to developing overall ‘net positive’ outcomes – the current ‘no net loss’ objective will be replaced by a ‘net positive’ objective in the BC Act, including a requirement that the Minister for the Environment develop a strategy to transition the scheme to deliver net positive biodiversity outcomes. 
3. New Ministerial concurrence required – this will apply to development consents or approvals to which the biodiversity offsets scheme applies, where the relevant authority proposes to impose a condition that requires the retirement of a different number and class of credits to that specified in the biodiversity development assessment report. 
4. New public registers – public registers maintained under the BC Act will be expanded to include decisions to exempt certain development from the scheme, decisions on certain development that is likely to have serious and irreversible impacts, and measures identified in a biodiversity development assessment report (or imposed as a condition of consent) to avoid and minimise the impact of a development.

Much of the detail relating to the majority of the amendments contained in the Offsets Bill will be set out in the accompanying changes to the relevant regulations, which are yet to be introduced.

A copy of the Bill as passed is set out here.

Roadblocks for the Stage 2 reforms to the Environment Protection and Biodiversity Conservation Act (Cth)?

While legislative changes are fast progressing in the NSW biodiversity sector, there appear to be roadblocks at the federal level. Last year saw the introduction of legislation to create two new national independent bodies as part of its broader ‘Nature Repair’ reforms to the Environment Protection and Biodiversity Act 1999 (Cth), being Environment Protection Australia and Environment Information Australia (responsible for collecting, maintaining and making accessible environmental data).

Despite extensive stakeholder consultation and referrals to Senate committees, this legislation has been confirmed as not proceeding and discharged from the Senate’s Notice Paper for this Parliamentary sitting. We will continue to watch this space and provide additional updates when available.