Reminders regarding the EPA Amendment Regulation

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Reminders regarding the EPA Amendment Regulation

By Gabriella Hijazi and Alyce Kliese

The Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 (the Amendment Regulation) commenced on 25 November 2022.

The Amendment Regulation made a number of changes to the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), as well as to other planning regulations.

  1. Requirement for the written consent of landowners for DAs

In making a development application, the Amendment Regulation has included the requirement for owner’s consent to be made in writing, pursuant to the amended section 23 of the EPA Regulation.

Section 23 of the EPA Regulation previously imposed no requirements as to the form that owner’s consent is provided.

The requirement for written owner’s consent will not apply to development applications lodged prior to 1 January 2023, pursuant to schedule 1, item 24 of the Amendment Regulation.

  1. Lodgment of DAs on the NSW Planning Portal

Development applications and modification applications subject to Court proceedings, which were submitted but not finally determined before 1 March 2022, will no longer be required to use the NSW Planning Portal (as was previously required).

  1. Complying development certificate provisions

The Amendment Regulation removes subsection (1) and adds new subsections (1A) and (1B) to section 129A of the EPA Regulation. Section 129 of the EPA Regulation contains provisions relating to business and industrial buildings under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP).

The changes made are as follows:

  1. Section 129A will also cover application for a complying development certificate made under Part 5A of the Codes SEPP (the Industrial and Business Buildings Codes) regarding development for a specified purpose on land in the E3 Productivity Support zone (see subsection (1));
  2. Section 129A will not apply to development involving only a change of use of the premises or internal alterations to a building (or both) (see subsection (1A));
  3. a design statement must accompany an application to which section 129A applies (see subsection (1B).

Some additional changes with respect to complying development certificate provisions are:

  1. an amendment to section 137 of the EPA Regulation to require a new form of report with respect to issuing complying development certificates; and
  2. the addition of a new subsection (3A) which prohibits certifiers from issuing a complying development certificate “for development comprising internal alterations or a change of use to an existing building subject to a performance solution under the Building Code of Australia unless the certifier has obtained or been given a compliance report for the development.”