Commencement of key changes to the Environmental Planning and Assessment Act 1979 (NSW)

On 23 November 2017, the Environmental Planning and Assessment Amendment Act 2017 (the Amendment Act) was passed.

Most of the changes introduced by the Amendment Act came into effect on 1 March 2018. Some of the remaining changes will commence in stages in order to provide a transition period for the government, community and industry to adapt to the new scheme.

New objects

The objects of the Environmental Planning and Assessment Act 1979 (EP&A Act) have been updated to include the promotion of:

• good design and amenity of the built environment;
• sustainable management of built and cultural heritage; and
• proper construction and maintenance of buildings.

Independent Planning Commission (IPC)

The Planning Assessment Commission (PAC) has been renamed as the IPC. The functions of the IPC are largely the same as the former PAC. The public hearing process has also been improved to provide the community with opportunities to present their concerns at an early stage of the assessment.

Sydney district and regional planning panels

While the previous regional planning panels continue outside of Sydney, the updated EP&A Act establishes five Sydney district planning panels for the Greater Sydney Region, which replace the Sydney Planning Panels introduced in 2016. The Sydney district and regional planning panels determine ‘regionally significant’ development applications (DAs) over certain thresholds. Note that property developers and real estate agents cannot be members of these panels.

Local planning panels

In a major change, Local Planning Panels (LPPs), formerly known as Independent Hearing and Assessment Panels, must now be constituted for all councils in Greater Sydney and Wollongong. These panels, once established, will have the approval functions of council for DAs that meet the referral criteria set out in a direction of the Minister of Planning.

LPPs are now required to give written reasons for their decisions regarding DAs and make them publicly available on a website of, or used by, the relevant panel. However, a decision is not invalid merely because of a failure to give or publish the reasons. In a council area for which a LPP is constituted, councillors are not permitted to exercise the functions of a council as a consent authority. For councils outside of Greater Sydney and Wollongong, it is not mandatory to establish a LPP.

Concurrence advice needed for Part 5 development

Although standard practice already, public authorities are now required to consult with other authorities before commencing work in infrastructure corridors.

New tools to combat breaches of the EP&A Act

Regulators are now able to negotiate an enforceable undertaking with perpetrators to remedy a breach. These undertakings may include recovery of profits gained from the breach, compensation to affected parties, and making good on damage to the natural or built environment.

End of Part 3A

Transitional Part 3A provisions, which were introduced following the 2011 repeal of Part 3A of the EP&A Act, have been removed. Future modifications of Part 3A projects will need to be assessed as State Significant Development or State Significant Infrastructure.

Planning agreements

The Minister for Planning now has the power to direct councils as to the methodology to be used when entering into voluntary planning agreements (VPAs).

Structure

Unfortunately, long-known and familiar concepts and sections have been changed via a renumbering of the whole of the EP&A Act. A schedule is available online to compare old sections with the new. The regulation supporting the commencement of the changes to the EP&A Act provides that a reference to an old section is taken to be a reference to a new section, so that forms and templates referring to old sections of the EP&A Act can still be used.

Estimated schedule of changes to be implemented by a staged approach

What are the key issues?

Developers

• The removal of the power of councillors to exercise consent authority functions further de-politicises the planning approval process, ensuring that councillors’ views are balanced by those of independent experts.
• The addition of enforceable undertakings allows for greater flexibility and efficiency in achieving compliance with the EP&A Act.
• Part 3A is gone.
• Once commenced, changes to ‘dormant’ conditions will clarify the post-consent enforcement responsibilities of government agencies e.g. the Department of Planning and Environment, the NSW Environment Protection Authority etc. for major projects.

Councils / government agencies

• Need to comply with directions of the Minister for Planning when entering into VPAs.
• Must seek the concurrence of other authorities prior to the commencement of work in infrastructure corridors.
• Less decision making power for councillors (due to the role of local planning panels).

Public

• The updated EP&A Act provides communities with additional opportunities to engage in the planning system, including by the introduction of Community Participation Plans and Local Strategic Planning Statements. However, these amendments are not due to commence until mid to late 2019. The delay is to allow for consultation with stakeholders on the design and implementation of these new documents.

For more information on how the changes apply to your situation please contact the Norton Rose Fulbright team.

We would like to acknowledge the contribution of Emilija Rupsys in preparing this article.