New South Wales Planning Quarterly

Proposed new planning rules to fast track low-rise and mid-rise residential housing

On 28 November 2023, the NSW Government announced its proposed changes to state planning controls to increase urban density and allow for greater diversity of homes such as residential flat buildings of 3-6 storeys, terraces, townhouses, duplexes and smaller 1-storey and 2-storey apartment blocks where such development is currently restricted.

It is expected that amendments will be implemented by a State Environmental Planning Policy (SEPP) to override limitations imposed by local councils and permit the construction of the following dwellings:

1. dual occupancies such as duplexes in all R2 low-density residential zones across all of NSW;
2. terraces, townhouses and 2-storey apartment blocks near transport hubs and town centres in R2 low-density residential zones across the Greater Sydney, Hunter, Central Coast and Illawarra regions; and
3. mid-rise apartment blocks near transport hubs and town centres in R3 medium-density zones and appropriate employment zones to allow for greater housing supply and diversity near transport hubs, shops and amenities.

It is estimated that the proposed changes will deliver up to 112,000 new dwellings to cater for different lifestyle options across Greater Sydney, the Hunter, Central Coast and Illawarra regions.

We are closely following any new developments in this area and will provide a more detailed update once the specifics of the proposed amendments are released.

More information on the proposed changes can be found here.

Release of updated NSW Coastal Design Guidelines

In October 2023, the NSW Government released the updated NSW Coastal Design Guidelines 2023 (the Guidelines) which are available here.

The Guidelines form part of the NSW coastal management framework. Whilst its application is primarily for planning proposals, it is also relevant as a guide to best-practice design for development within the coastal zone.

The coastal zone is defined in Part 2 of the Coastal Management Act 2016 (NSW) and Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2023 (NSW) as four (sometimes overlapping) coastal management areas, including in order of importance:

• Coastal wetlands and littoral rainforests areas;
• Coastal vulnerability areas;
• Coastal environment areas; and
• Coastal use areas.

The Coastal Management Maps are available on the NSW Planning Portal Digital EPI viewer here.

Planning proposals that seek to amend a local environmental plan in the coastal zone must address the Guidelines. A revised Local Planning Direction 4.2 (Coastal Management) (available here) was issued and commenced on 10 November 2023 stating a planning proposal must include provisions that “give effect to and are consistent with” the Guidelines. This is the case unless an inconsistency can be justified in line with the requirements of the local planning direction.

Whilst not a mandatory consideration outside the context of a planning proposal, the Department of Planning and Environment strongly encourages use of the Guidelines when proposing development within the coastal zone, to ensure the coastal environment is understood and the design is sensitive to the natural coastal environment.

An “assessment checklist for planning proposals” to assist in determining whether a planning proposal in the coastal zone puts the Guidelines into practice is included in Appendix 1 to the Guidelines. A further checklist to assess if a design meets urban design objectives is also included at Appendix 2.

Varying development standards: Reforms to clause 4.6

Reforms to the system for varying development standards came into effect on 1 November 2023.

Under the NSW planning framework, Environmental Planning Instruments (EPIs), such as Local Environmental Plans (LEPs), contain development standards to achieve environmental planning objectives. The mechanism to vary a development standard is clause 4.6 of the Standard Instrument LEP (and equivalent provisions in non-standard LEPs and SEPPs).

The reforms aim to make the application of clause 4.6 simpler and clearer, provide greater transparency in the decision-making process, reduce the risk of its misuse, and clarify exclusions to clause 4.6.

Amendments to clause 4.6

Clause 4.6 in the Standard Instrument LEP and equivalent provisions in non-standard LEPs and relevant SEPPs such as the State Environmental Planning Policy (Precincts-Regional) 2021, have been amended to remove:

• the need for the consent authority to be satisfied that the proposed development will be in the public interest, the reasoning being that consideration of the public interest is already an obligation of the consent authority; and
• the Planning Secretary’s concurrence requirements and replace them with a new monitoring and reporting framework.

Guidance

The Department of Planning and Environment (the Department) has issued an updated Guide to Varying Development Standards as part of the reform package. This guide provides useful guidance to applicants and includes a template which can be used to prepare a written request to vary a development standard.

New s 9.1 Ministerial Direction – Exclusion of development standards

As part of the reforms, the Minister for Planning issued a new direction under s 9.1(2) of the EP&A Act to guide the exclusion of development standards from variation when preparing planning proposals. In accordance with this direction, relevant planning proposals must:

• minimise the exclusion of development standards from variation under clause 4.6 (or equivalent provision in any other EPI), and
• not propose to exclude a development standard from variation under clause 4.6 (or equivalent provision in any other EPI) unless the exclusion is consistent with criteria set out in Part 2 of an accompanying Guide to exclusions from clause 4.6 of the Standard Instrument.

More information on the reforms is available here.

Release of the Draft Energy Policy Framework for large scale renewable energy projects

In November 2023, the Department released the Draft Energy Policy Framework (Draft Framework) relevant to renewable energy projects declared to be of State significance.

The Draft Framework is supported by the following specific guidelines and technical supplements:

• Draft Wind Energy Guideline supported by technical supplements for Landscape and Visual Impact, and Noise Assessment, and a Wind Energy Decommissioning Calculator
• Proposed updates to the Solar Energy Guideline 2022, supported by a Solar Energy Decommissioning Calculator
• Draft Transmission Guideline supported by a technical supplement for Landscape and Visual Impact
• Draft Benefit Sharing Guideline
• Draft Private Agreement Guideline

Some of the key proposals contained in the Draft Framework include guidance and advice to assist industry in selecting sites and designing projects, guidance on when the Minister will consider requests for declaring solar and wind energy developments as critical state significant infrastructure, new guidance on landscape, visual impacts and noise assessment, new guidance on planning approval pathways, and maps showing “suitable locations” for development.

Our team has recently published further detail on the Draft Framework which can be found here.

Public exhibition and stakeholder feedback closes on 29 January 2024.

Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121

This case was decided in the NSW Land and Environment Court (LEC) on 9 November 2023 and is of interest because it deals with the interplay between the EP&A Act and the POEO Act.

By way of background, the applicant lodged a development application which proposed, in addition to other development, remediation of land that was contaminated with asbestos. In the Class 1 proceedings, the applicant appealed to the LEC against the deemed refusal, and the Commissioner determined that the appeal should be dismissed and the development application refused. Part of the Commissioner’s reasoning for refusing consent related to a consideration that part of the proposed development would amount to a breach of POEO Act.

On appeal, Preston CJ held, at [156]:

The power in s 4.16 of the EPA Act to determine a development application seeking consent for remediation works is not conditioned on the lawfulness of the remediation works under the POEO Act. The jurisdictional requirements for the determination of such a development application are only to be found in the EPA Act and regulations and environmental planning instruments made under that Act. The POEO Act does not fix any jurisdictional requirement for the determination of such a development application under the EPA Act.

The key take-away from this case is that the ability to grant consent to a development application under the EP&A Act is not conditional on the lawfulness of that same development under other legislation.

You can read the case here.

Passing of the Biosecurity Amendment (Independent Biosecurity Commissioner) Bill 2023

On 12 December 2023, the Biosecurity Amendment (Independent Biosecurity Commissioner) Bill 2023 (the Bill), which will introduce amendments to the Biosecurity Act 2015 (NSW), was assented to. The object of this Bill is to establish an Independent Biosecurity Commissioner to provide independent and expert advice, conduct reviews and make recommendations to the Government on issues relating to pests and weeds.

As outlined by the Hon. Tara Moriarty MLC, Minister for Agriculture, in her Second Reading Speech available here, the following four proposals will be referred to the new Commissioner when appointed:

• a review into issues that may create a perception of an inconsistent enforcement approach, including the selection of appropriate compliance tools and actions and clarifying responsibilities around the application of these;
• improving communications to occupiers of land around biosecurity obligations;
• exploring avenues to enhance the involvement of Aboriginal communities in biosecurity pest and weed management initiatives, fostering cultural engagement and sustainable practices; and
• reviewing the governance arrangements and structure of the State and regional committee system responsible for pest and weed management.

A copy of the full text of the Bill is available here.