New South Wales Planning Quarterly

New rules for Independent Planning Panels

The Department of Planning and Environment is in the process of implementing new rules to strengthen independent planning panels in an effort to create less certainty about the constitution of panels and help stamp out the potential for improper influence and lobbying.

The changes to the operation of Sydney District Panels (SDPs) and Regional Planning Panels (RPPs) came into effect in December 2022. According to the Department the changes include requirements for the regular rotation of panel members on RPPs, as well as:

• New requirements for probity checks, including police checks for community representatives, and statutory declarations that representatives are not property developers or real estate agents;
• Encouraging councils to appoint a minimum of 4 alternate council members that can sit on their relevant RPP; and
• Appointing a minimum of 60 experts in the pool that SDPs and RPPs can choose from.

The changes to the operation of Local Planning Panels (LPPs) will come into effect on 24 April 2023 and also require regular rotation of LPP members and requirements for probity checks, as well as:

• Mandating a minimum number of experts (15) in pools for LPPs;
• Mandating a minimum number of community representatives (4) in pools for LPPs;
• Clarification that applicants can request to formally meet with LPPs to brief them on any project; and
• Implementation of a framework for the Department to induct LPP members.

For further information, see here.

New SEPP

The State Environmental Planning Policy (Sustainable Buildings) 2022 will commence 1 October 2023 and repeal the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. This policy will update the Building Sustainability Index (BASIX) standards and introduce new energy and water use efficiency standards for new residential and non-residential buildings, large commercial development and state significant development. Certain non-residential properties, including industrial sites and shopping centres, will be excluded from the operation of this policy.

Rezoning Pathways Program

In December 2022, the Department of Planning and Environment launched a pilot application process for its “Rezoning Pathways Program”. This program allows industry to bypass the usual council-led rezoning process in strategically important circumstances. Under the program, state-led rezoning can occur where the Department leads a rezoning in large geographic areas or precincts of state significance. Alternatively, state-assessed planning proposals can occur when the Department assesses a planning proposal of state significance or regional environmental planning significance.

Industry were invited to apply and nominate rezoning proposals so long as they met the following four eligibility criteria:

1. Not in the planning system: the project must not be the subject of an active planning proposal lodged in the system;
2. Readiness to lodge: within 2 months of being notified that the project was approved to proceed as a state-assessed planning proposal, the applicant must undertake to formally lodge the planning proposal with the Department via the Planning Portal;
3. Minimum dwelling threshold: the project must demonstrate that through the rezoning it will enable at least:

(a) 1000 residential dwellings in Metropolitan NSW; or

(b) 300 residential dwellings in Regional NSW.

4. Compliance: comply with relevant planning legislation, policies and Ministerial Directions.

Although applications for the pilot closed on 22 January 2023, it will be interesting to see if the Department considers this on an ongoing basis. Further information can be found here.

Environmental Planning and Assessment Regulations

It’s been one year since the commencement of the Environmental Planning and Assessment Regulation 2021 in March 2022. A notable change included in the suite of updates was the statutory recognition of the Review of Environmental Factors (REF) process when considering the likely impact of an activity on the environment, which:

• Allowed the Secretary to prescribe guidelines for the form of environmental assessment for activities not requiring an Environmental Impact Assessment (EIS). The Guidelines for Division 5.1 Assessments which outline the process and list the factors to be considered were published in June 2022 and can be located here;
• Required publication of certain REF documents on the determining authority’s website or the NSW planning portal, for example where the project cost is over $5 million;
• Exempted some activities from the publishing requirements (largely those substantially related to anti-terrorism measures and containing sensitive public safety information); and
• Required that the determination of the proposed activity is recorded in a decision statement signed on behalf of the determining authority.

New notice requirements pursuant to the Environmental Planning and Assessment Amendment (Notice Requirements) Regulation 2022 commenced on 23 December 2022, which require certain consent authorities to notify particular determinations of development applications and reviews according to an approved form. In relation to notices provided by or on behalf of a relevant council, these requirements will commence on 1 May 2023. These requirements do not apply to State significant development or Crown development.