by: Alyce Kliese, Partner and Byron Knight, Solicitor
The NSW Department of Planning, Infrastructure and Environment has recently released a proposed amended Environmental Planning and Assessment Regulation 2021 (the Regulation). The proposed changes follow the 2018 updates of to the parent-legislation of the Regulation, the Environmental Planning and Assessment Act 1979. The proposed changes have the goals of cutting “red-tape”, improving efficiency, increasing transparency, and reducing assessment timeframes. The Regulation supports the day-to-day requirements of the planning and system, so any proposed changes to the Regulation warrant close inspection!
Key Summary Points:
The New Regulation is expected to commence on 1 March 2022. Submissions close on 22 September 2021 and can be made on the Planning Portal.
We have set out six of the most important proposed amendments in my view below:
- Numbering of clauses – all clauses will be renumbered.
- Existing use rights – the term ‘floor space’ will be replaced with ‘gross floor area’ at what is currently cl 41 for the purpose of considering whether an existing use can be changed. In turn, the definition from the Standard Instrument-Principal Local Environmental Plan (the Standard Instrument) will be adopted. That definition can be found at cl 4.5 of the Standard Instrument.
- Development applications (other than complying development) – several changes will be made and some of the most notable are:
- the DA requirements that are currently set out in Schedule 1 of the EPA Regulation will be transferred across to the approved form on the Planning Portal (in this regard, a new and improved approval form will be developed in consultation with councils);
- the removal of the requirement for a landowner’s consent for the surrender or modification of a development consent, but only to the extent the DA could have made without the consent of the landowner;
- clarification at the newly numbered cl 100(1) that a consent authority can reject a modification application if illegible or unclear; the conditions to be modified are not specified; information or documents required are not provided; or the application does not identify all of the approvals required;
- clarification that withdrawal provisions afforded to DAs also apply to all modification applications at the newly numbered cl 101 of the 2021 EPA Regulation;
- a new requirement, amending cl 122 of the EPA Regulation, that a consent authority who approves a modification to provide the applicant with a modified development consent that complies with any requirements specified by the Planning Secretary;
- a new requirement that consent authorities notify submitters of determinations on internal review applications; and
- clarifications regarding calculation of assessment and deemed refusal periods and “stop the clock provisions”.
- Complying development Certificates – at Part 6 of the 2021 EPA Regulation there will be new requirements in terms of the information required for CDC applications, including:
- requiring details on site configuration and building envelope be provided;
- requiring a site plan drawn to scale be included;
- requiring the maximum site coverage of the land also be included;
- requiring that reports, studies, plans and documentation relied upon to determine the CDC application be listed on the CDC with sufficient guidance on how and where the documents can be accessed; and
- requiring the disclosure of site plans in a pre-approval notice.
Also, a new cl 102(1) in the 2021 EPA Regulation proposes to provide that a CDC application must be in the approved form and includes new requirements as to the information to be included, which are: previous DA reference numbers for change of use CDC applications; and additional information on prior approvals.
The duplicate requirements for neighbour notification will also be removed in relation to modified CDC, if neighbours were notified of the original application.
- Designated development – new categories of designated development will be established. Additionally, it will be clarified that associated works (for example, access roads) are not triggers.
- Electronic communication methods – all information will now be provided online or electronically. Hard copy requirements will be effectively done away with. Their will also be clarification that clauses requiring a document is to be delivered or posted can be met through electronic methods (for example, email). All publication requirements will also be able to be met through electronic communication means.
Please read the EPA Regulation 2021 Overview fact sheet should you wish to consider the proposed amendments further.
How we can help
As always, we are here to help you deal successfully with a problem that might prevent you from achieving your aim. Unless and until there are amendments to the EPA Act, there are some practical ways to address this limitation. For example, it might be practical in your case to:
- Negotiate conditions of consent where the effect of a condition may be to modify the details of the development, noting that it is open to the Council and the Court to do so without amending pursuant to cl 55 of the Environmental Planning & Assessment Regulations 2000.