Amendments to the Environmental Planning and Assessment Regulation 2021 made in September 2022 will require consent authorities to prepare development consents on the NSW Planning Portal using the standard forms for notices of determination from 30 June 2023.
This delayed commencement will give councils and planning panels time to familiarise themselves with the new requirements and update their processes and systems.
Introduction of a standard format
A standard format for a range of notice of determination has been approved. The department will make the standard notices of determination available through the NSW Planning Portal for all councils and planning panels (local, Sydney district or regional) to use for local and regionally significant development from September 2022. The standard format for notices of determination will not apply to state significant development, complying development or Crown development.
Councils and planning panels must use the notice of determination through the portal from the commencement dates.
Until amendments commence, councils can opt to use the standard conditions and standard notices of determination on the NSW Planning Portal, or they can continue to prepare notices of determination as they currently do and apply their own conditions of development consent.
A standard format for some of the letters that may need to accompany a particular type of notice of determination have also been prepared (for example, a notice of review of determination letter).
Standard conditions toolkit
The NSW Planning Portal will include two libraries of conditions, one for prescribed conditions (mandatory) and standard conditions (best practice), and another for councils’ bespoke conditions. The Council toolkit for standard conditions of consent (PDF, 449 KB) has been prepared to help councils in how to:
- upload and maintain their own bespoke conditions
- include conditions in the standard notice of determination.
Until September 2022, there has not been a standard format for notices of determination in the planning framework, with each consent authority using its own template. Councils, industry and the community have told us that the different notices of determination and inconsistency in the application of conditions resulted in delays and additional costs for applicants and certifiers. A consistent format for notices of determination across the state makes it easier for applicants to understand their obligations. This in turn will make it easier to comply with the consent.
The notices of determination document the consent authority’s decision in relation to a development application (DA). Clause 88 of the Environmental Planning and Assessment Regulation specifies the information that must be contained in a notice of determination, including the conditions of consent if a DA is approved (with the reasons for imposing the conditions) and the reasons for refusal if a DA is refused.
The standard format for notices of determination is consistent with the format many councils already use. The standard format facilitates conditions of consent (prescribed, standard, and bespoke conditions) being set out under the various stages of the development process.
There are different determinations a consent authority can make depending on the type of application. The standard format for notices of determination provides for the following types of determinations:
- Approval of a development application, subject to conditions
- Deferred commencement of a development consent, subject to conditions
- Approval of a concept development application, subject to conditions
- Deferred commencement of a concept development application, subject to conditions
- Approval of an application to modify a development consent, subject to conditions
- Approval of an application to modify a concept development application, subject to conditions
- Approval of an application to modify a deferred commencement concept development application, subject to conditions
- Approval of a review of determination, subject to conditions
- Refusal of a development application
- Refusal of an application to modify a development consent
- Refusal of a review of determination.
The format for standard notices of determination applies to applications for consent for different types of work, including building work, subdivision work, demolition work, remediation work, subdivision of land, strata subdivision and change of use. This allows consent authorities to use the standard format for a consent for one of these types of work or for multiple types of work (for example demolition and building work).
Under the standard format, each consent starts with the heading “general conditions” and further stages will depend on the type of work. The length of the consent is tailored to the type of work proposed. For example, for building work, the headings/stages are:
- General conditions
- Before issue of a construction certificate
- Before building work commences
- During building work
- Before issue of an occupation certificate
- Occupation and ongoing use.
Reasons for each condition
The notice of determination must include the consent authority’s reasons for imposing conditions (other than prescribed conditions).
The template allows for these to be listed next to each condition, making it easy to understand the rationale for the condition while also making it clear that the reasoning does not form part of the condition itself.
In the NSW Planning Portal, councils will be able to select the template for the notice of determination in the portal for the type of determination proposed (for example, approval of a development application, subject to conditions). Prescribed conditions are automatically generated in the notice of determination prepared through the portal, saving time and resources for both councils and applicants. Councils can select which standard conditions to include in the notice of determination and upload their own bespoke conditions, if required.
Advisory notes
It is common practice for councils to include advisory notes in notices of determination to provide applicants with additional information about their responsibilities. For example, it might inform the applicant that other approvals are required, such as approvals under section 68 of the Local Government Act 1993. However, advisory notes do not form part of the determination.
As part of the changes introduced with the standard conditions of development consent, advisory notes will be included in a separate document to accompany any notice of determination prepared through the portal. However, this document will make it clear that the advisory notes do not form part of the consent and are not legally enforceable.
Notices of determination made available through the NSW Planning Portal will have a link to the relevant Conditions of development consent: Advisory notes document.
Councils will have the option of attaching a separate document of advisory notes to the notice of determination if they consider it necessary.
For more information, email [email protected]