NSW Department of Planning and Environment

Legislative amendment for concept proposals

Background

In 2015, a concept proposal by Arts NSW for a new performing arts and cultural precinct in Walsh Bay was assessed and approved. The concept approval did not give consent to carry out any works.

That decision was later challenged in the Land and Environment Court (LEC) on the grounds that the department should have considered construction–related noise impacts when assessing the concept proposal, rather than allowing the assessment to be undertaken when the development application (DA) for construction was lodged.

The LEC agreed that because the concept proposal did not seek approval for works, it was appropriate that construction–related impacts be considered at the DA stage.

In June 2017, The Court of Appeal took a different view and found the development consent for the Walsh Bay Arts Precinct invalid finding that:

  • construction impacts should be considered at the concept proposal stage, and
  • a concept proposal must involve two or more subsequent DAs to be considered a 'staged DA' under the provisions of the Act.

This is at odds with the approach councils and the department have taken, which has been to allow construction impacts to be assessed at a later stage, where the concept approval does not allow any construction work to be carried out. Established assessment practices also allowed concept proposals to be followed by a single DA for construction.

Impact of decision

The likely impact of the decision is that:

  • Applicants will now need to provide much greater information at an earlier stage – often when construction details aren’t fully known.
  • Duplication of assessment process – as construction impacts will be assessed at both the concept and DA stages.
  • Applicants will need to break proposals into multiple subsequent DAs, adding time and cost to the process.

This decision highlights the need for greater clarity around the requirements for concept proposals.

The changes

These issues need to be clarified to avoid delays in the assessment and delivery of more than $8 billion worth of major state, regional and local development.

The Bill clarifies:

  • that a staged DA may include a concept approval and only one subsequent DA, and
  • the level of assessment required for concept proposals.

The changes reflect accepted assessment practice and ensure that established processes can continue. Nothing in the amendments will restrict councils and the department from considering construction impacts during the concept proposal stage. The changes allow construction impacts to be assessed at the later DA stage if more appropriate, when the detailed design of proposals and their construction methods have been fully considered. In either case, the legislation ensures construction impacts are fully assessed before any work can be carried out.

The amendments will apply to applications that are pending, and protect any consents that have been granted since the release of the draft Bill for public exhibition.

The proposed changes to legislation will not validate the consent for the Walsh Bay Arts Precinct or the second stage DA which is yet to be determined.

What does the Bill do?

The changes in the Bill will replace the current provisions for staged development applications in the Environmental Planning and Assessment Act 1979 (Part 4, Division 2A). It will mostly replicate the current provisions, with the following key changes:

  • 'staged development applications' will be renamed 'concept development applications, to better reflect what they contain in practice,
  • a concept development application will be able to be followed by only one development application for the site, rather than the multiple applications currently required, and
  • a new provision (section 83B(5)) will make it clear that the impacts of carrying out the development may be considered when the concept proposals are being assessed, but must be considered where approval to carry out works is sought.

The Bill also includes savings and transitional arrangements to ensure that the new provisions for concept development applications apply to pending development applications, as well as development consents previously granted. The changes will not apply to development consents that have been declared invalid by a court before the public release of the Bill.

Submissions

The draft bill was released for public comment from 30 June to 24 July. A broad range of submissions were received.

The submissions were taken into consideration by the department in finalising the draft Bill for Parliament. There was one major change to the Bill in response to submissions. This change was to clarify that the Bill will not validate the second stage DA lodged for the Walsh Bay Arts precinct.

View the submissions at the Plans Policies website.

Where can I see the proposed changes?