In brief - Changes designed to streamline the assessment process and ensure community involvement
The Planning Bill 2013 introduces a new "code development" assessment track to streamline the development process and imposes a general obligation on consent authorities like local councils to inform those who lodge development applications of any issues that may lead to the refusal of their application.
Public consultation results in significant changes to Planning Bill
On 20 November 2013, the long-awaited Planning Bill 2013 ("the Bill") was introduced into the NSW upper house of parliament for debate, having passed the lower house on 30 October 2013. The Bill was anticipated to have been introduced earlier based on A New Planning System for NSW - White Paper ("the White Paper").
However, the NSW government adjourned its introduction due to concerns raised through public submissions. The public consultation process indicated that NSW's planning system would still remain unnecessarily complex.
According to the NSW Minister for Planning and Infrastructure, significant changes have been made prior to the introduction of the Bill in consideration of the public submissions received. Significant changes include those relating to the decision making process (with greater involvement from the community) and code assessment changes.
Community to be given greater opportunity to engage in planning process
The Bill contains a new approach to community participation which will be at the centre of the new system as outlined under Part 2 of the Bill. The introduction of the Community Participation Charter ("the Charter") sets out the principles by which the community is to be given the opportunity to engage in the planning process. In particular:
• The Charter will apply to the exercise of strategic planning, development consent, environmental impact assessment, state infrastructure approvals and infrastructure plan functions.
• A planning authority (such as the state government and local councils) is to prepare a Community Participation Plan, to be publicly exhibited for at least 28 days, outlining how it proposes to provide opportunities for the community to participate in all areas of planning.
• A high level of community participation will be specifically required for the development of Regional Growth Plans and Subregional Plans.
• A planning authority is required to publish reasons for its decisions and set out how community views have been considered in the decision making process.
New "code development" assessment track introduced to streamline assessment process
Under NSW's current planning system, a development requiring planning approval is either assessed as complying development, or is subject to a development application where "merit assessment" is undertaken.
Part 4 of the Bill introduced a new "code development" assessment track to streamline the assessment process. Code development is one track of other development assessment tracks requiring consent, including complying development, merit assessment and state significant development. Previously the White Paper provided that a development could be the subject of both code and merit assessment, however, this is no longer the case.
Under the Bill, code assessment will be limited to growth areas, urban renewal and growth activation precincts, as they are identified in Subregional Delivery Plans. Since councils have significant representation in Subregional Delivery Boards, they will also have a significant say in determining where code assessment will apply.
Developments which will not be subject to code assessment
The Bill now provides that the following developments will never be subject to code assessment: state heritage items; Environmental Impact Statement assessed development; development applications relying on Strategic Compatibility Certificates; development requiring concurrence regarding threatened species and development that requires an Aboriginal heritage impact permit.
Councils to assess code assessment applications
In addressing other issues raised in public submission, code assessment applications have been subject to further changes including the following:
• Councils, not private certifiers, will assess code assessment applications.
• No blanket target for code and complying development applications will be enforced on local councils.
• If a development proposal exceeds codes standards, even by 1cm, it will not be approved as code and will be subject to a full merit assessment.
What else is changing under the Bill?
• Under Part 3 of the Bill, a strategic planning framework will be maintained as proposed in the White Paper. However, the ten strategic planning principles contained in the White Paper have been removed and replaced with broader, more general considerations.
• Amber light approach – the White Paper proposed that a consent authority must notify an applicant before it refused their development application and must specifically identify the amendments to be made before it would reconsider the application. Part 4 of the Bill has now been amended to impose a "general obligation" on the consent authority to inform the applicant after it lodges a development application of any issues that may lead to the refusal of their application. A consent authority is no longer required to advise the applicant as to how the application is to be amended.
• Infrastructure contributions will no longer be capped and will be based around a three tier system, including local infrastructure contributions, regional infrastructure contributions and biodiversity offset contributions. Whilst contributions will be applied to a broader number of developments, the Bill provides for greater flexibility of the payment of regional and local infrastructure contributions. In particular, the Bill will contain a provision enabling the deferral of payment of local and regional infrastructure contributions. The NSW Department of Planning and Infrastructure Feedback Report provides that the payment of contributions may be postponed until the property is sold or 12 months after consent is granted (whichever occurs earlier). This is a change from our current system which requires payment upfront at the approval stage.
If the Bill is passed in the upper house, the current NSW Environmental Planning and Assessment Act 1979 will be repealed and replaced with the Bill, aimed to be implemented as soon as possible.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.