Changes to NSW Planning Act
The key legislation in New South Wales’ planning laws, the Environmental Planning and Assessment Act 1979 (“EPA Act”), was recently amended with a range changes following a public consultation previous covered in this newsletter. The new changes cover a range of areas and include the introduction of new types of plans, review requirements of councils and adds powers in enforcing the EPA Act. Below is a summary of some of the major changes that the amendments bring.
1. Revisions of the Objects of the EPA Act
The Objects of any act, though generally not substantive law themselves, help indicate how the act should be interpreted. The EPA Act’s objects have been slightly reworded, however the key new change in the inclusion of an object to promote good design and amenity of the built environment.
2. New Community Participation Plans (CPPs)
Councils will be required to prepare CPPs which will outline the process and timeline involved in any community participation required (such as public exhibition) when they make planning decisions. The amendments include minimum public exhibition periods.
3. Local Strategic Planning Statements (LSPSs)
The other new type of plan is the LSPS, which each council must prepare. The LSPS outlines the planning priorities for the area, however where a council is further split into wards they will be able to produce an LSPS specific to each ward. New planning proposals (such a rezoning) will need to include an explanation as to how the proposed changes are consistent with the relevant LSPS. The LSPS is to be reviewed at least every seven years.
4. Periodic reviews of SEPPS and LEPs
The new EPA Act will require local councils to review their Local Environment Plans (LEPs) every five years. Similarly, the Planning Secretary will need to review any State Environmental Planning Policies (SEPPs) every five years.
5. Contributions and VPAs for Complying Development
Voluntary Planning Agreements (VPAs) can now be entered into for complying development proposals, increasing the scope of these agreements that allow the developer to fund public amenities, infrastructure or provision of affordable housing as part of its development proposal. Similarly, State infrastructure contributions can be required for Complying Development.
6. Enforcement powers for Complying Development
As part of the Government’s push to increase the use of the Complying Development pathways, there are further powers to enforce Complying Development Certificates (CDCs) including allow councils to stop work under CDCs for up to seven days to allow investigations and enabling the Court to invalidate CDCs.
7. Allow consolidation of Development Control Plans (DCPs)
The new amendments will allow for “standard format DCPs” to provide consistency across such documents. This standard form has not yet been revealed, however while the formatting of DCPs are to become consistent their content will remain under the control of the relevant councils.
8. Allowing enforceable undertakings to be made where the EPA Act is breached
The Planning Secretary may accept a written undertaking from a person who has breached the EPA Act outlining their response to remedy the breach. The Court will have powers in regards to that undertaking including ordering the person to comply with the undertaking, requiring the person to pay the State any profit gained from their breach, requiring the person to compensate others or an order requiring the person control and mitigate any damage or likely damage as well as to make good on any damage caused.
The amendments passed Parliament on 15 November 2017 and received assent on 23 November 2017 and will commence by a day appointed by proclamation.
Alex Collie, Lawyer
Paul Carroll, Partner