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Updating the Environmental Planning and Assessment Act 1979

The Environmental Planning and Assessment Amendment Bill 2017 has been passed by Parliament and a copy is available on Parliament's website

 

The updates have four underlying objectives:

  • to enhance community participation
  • to promote strategic planning
  • to increase probity and accountability in decision-making
  • to promote simpler, faster processes for all participants.

The Department of Planning and Environment conducted community and stakeholder consultations across the State, receiving over 470 submissions from councils, community and environment groups, industry, planning practitioners and individuals. The resulting measures are designed to address existing and future challenges and opportunities for NSW. 


Given the scope of the changes in this Bill, the Government will be taking a staged approach to the Bill’s commencement. This will allow a smooth transition to the new measures and provide time for councils, communities, industry and practitioners to understand and prepare for the new requirements, including by updating their documents and forms to reflect the new, modernised structure. 

Most of the changes will commence in the first quarter of next year. Other changes will take longer to switch on and will involve further consultation, so new features of the planning system like community participation plans and local strategic planning statements will be introduced over time. This will ensure that all stakeholders have a proper opportunity to prepare for changes, supported by appropriate guidance, templates and other resources.  

 

What does the Bill achieve:

The EP&A Act is almost 40 years old, and has been amended over 150 times. To make the Act easier to navigate and understand, the Bill:

  • gives the Act a clear structure of 10 principal parts, with decimal numbering of all provisions 
  • moves some detailed provisions to schedules and the regulations where appropriate
  • updates the language of the objects of the Act while maintaining their substance.

The new objects reflect the Government’s commitment to thriving, safe and well-designed communities with local character and heritage. When performing functions under the Act, authorities will now be guided by additional objects promoting:

  • good design and amenity of the built environment
  • the sustainable management of built and cultural heritage (including Aboriginal cultural heritage)
  • the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants.

When the community can engage effectively with planning decisions, the outcomes are better and there is more confidence in the decisions made. The Bill will make it clearer and easier for the community to understand how it can participate in planning decisions. 

  • all planning authorities – every council and NSW agency with a function under the Act – will need to prepare a community participation plan. This will spell out when and how they will engage with their communities across all the planning functions they perform
  • the plans will have to meet the minimum requirements for community participation that will be set out in Schedule 1 to the Act. In their plans, authorities can commit to go beyond the minimum requirements, to suit the needs of their communities
  • in preparing their plans, authorities will have to take into consideration new community participation principles, which set the bar for how the community should be engaged. The principles state, among other things, that the community has a right to be informed about planning matters that affect it, and it should be given opportunities to participate as early as possible in strategic planning
  • to improve accountability to all stakeholders, decision-makers will have to give reasons for their decisions. 

For the first time, the Act recognises the critical role of councils in strategic planning. This is the process of working with the community to set out what is special about the local area, what its future should look like, and what actions are needed to get there. Under the new provisions:

  • each council will prepare a local strategic planning statement. This will set out the 20-year vision for land-use in the local area, the special character and values that are to be preserved, and how change will be managed into the future. The statements will need to align with the regional and district plans, and the council’s own priorities in the community strategic plan it prepares under local government legislation
  • the statements will shape how the development controls in the local environmental plan (LEP) evolve over time. This means the LEP will be a tool to deliver the council and community’s plan for the future
  • to ensure local views are reflected in the statements, ward councillors will have a lead role in preparing and endorsing the statements.

It is important that the development controls in the LEP and development control plans are kept up-to-date and as simple as possible, so people can understand what development is permitted on a site. The Bill helps to ensure this by:

  • requiring councils to do a ‘LEP check’ at least every 5 years – they will consider whether the LEP is still fit for purpose given any changes in population, infrastructure, strategic plans and other key indicators. This check may prompt some updates to the LEP, or it may find that a comprehensive review of the LEP is needed
  • allowing the creation of a standard format for DCPs – there are currently over 400 different DCPs across NSW and these vary significantly from council to council. The Bill will allow the Government to establish a standard, online format for DCPs. The content will remain up to councils, but they will be able to draw on model provisions prepared by the Department.

The complying development pathway is a key part of the planning system, saving applicants significant time and money. However, it is critical that the community can feel confident that the development standards are enforced. To improve confidence in complying development:

  • councils will be able to impose a levy on complying development certificates to fund monitoring and enforcement of complying development standards in their area 
  • councils will be able to stop work for up to seven days on a complying development site to investigate whether the construction is in line with the certificate. From there, the council can take more formal action – such as a development control order – if warranted
  • the courts will be able to declare a complying development certificate invalid if it does not meet the approved standards.

Stakeholders also raised concerns about instances where developers have constructed works that go beyond the approval, then retrospectively applied for a modification to authorise the extra works. To address this, councils will be able to impose an additional fee to deter retrospective modification applications. This fee will be set in the EP&A Regulations.

The Government recently introduced changes to make independent hearing and assessment panels (IHAPs) compulsory in Greater Sydney and Wollongong. This means panels of qualified, independent experts will be determining the most sensitive and complex development applications, which will improve planning outcomes and the probity of the system. The changes in this Bill build on the recent reforms by:

  • strengthening the rules for Sydney and joint regional planning panels in line with the local IHAPs – this includes ensuring property developers and real estate agents cannot sit on the panels, and that meetings are held in public
  • emphasising the independence and decision-making role of the Planning Assessment Commission, which will now be known as the Independent Planning Commission. The Commission will continue to make decisions about the most complex State significant development applications. It will no longer perform duplicative review functions, and its public hearing process will be improved to allow more scope for the community present their concerns at an early stage of the assessment, and for the Commission to more rigorously test the development proposal.

NSW agencies often have a role in providing advice or approvals where development has the potential to affect the environment, infrastructure or public safety. Stakeholders have raised concerns that this process can add delays to the assessment process. To address this:

  • the Bill gives the Planning Secretary the power to ‘step-in’ and give approvals, concurrence or advice on behalf of another NSW agency, where the agency has not met statutory timeframes or where two agencies hold conflicting views
  • this will be supported by an online platform that provides better information to councils and applicants about the status of referrals to NSW agencies.

The Government is committed to halving assessment times for major projects, without reducing the quality of the assessment of environmental and other impacts. The Bill contains measures to achieve this and to simplify and clarify the process for State significant development.

  • because of their complexity and potential impacts, State significant projects are often regulated by multiple agencies. This Bill introduces ‘transferrable conditions’. These are consent conditions that can become dormant where they are also imposed by an environment protection licence or other instrument. This reduces regulatory duplication while ensuring the impact is regulated using the most up-to-date instrument
  • the Bill also clarifies that the conditions of consent can require proponents to put up bonds, or other financial assurances, to fund rehabilitation work if needed
  • the Government is closing off the transitional arrangements for former Part 3A projects. All future modifications to these projects will be assessed under the State significant development or State significant infrastructure pathways. Consent holders will be given a short transition window to lodge any final modification applications under the old pathway (two months from the passage of the Bill, or one year if environmental assessment requirements have been issued).
For further information, please call our Information Centre on 1300 305 695 or email  legislativeupdates@planning.nsw.gov.au

Page last updated: 22/11/2017