Amendments to the EP&A Regulation

From March 2022, an amended version of the Environmental Planning and Assessment Regulation 2000 will commence.

Introduction

The Environmental Planning and Assessment Regulation 2000 (NSW) (2000 Regulation) is undergoing a comprehensive review with the draft Environmental Planning and Assessment Regulation 2021 (Draft Regulation) set to be introduced from 1 March 2022. The Draft Regulation is proposed in order to reflect the significant reforms that were made to the Environmental Planning and Assessment Act 1979 (Act) in 2018 and in response to the Issues Paper circulated in 2017.

Proposed amendments

The 2000 Regulation supports the day-to-day operation of the Act and is currently undergoing a comprehensive review. It is hoped that the proposed 2021 Regulation will reduce administrative burden and increase procedural efficiency in order to establish a more transparent and user-friendly planning system.

A Regulatory Impact Statement has been published which outlines the full suite of proposed changes, however a summary of some of the key amendments proposed by the 2021 Regulation is provided below.

Updated development and modification application requirements

New provisions are to be introduced which clarify the requirements that apply in relation to both development applications (DAs) and modification applications. For example, the proposed provisions will confirm that the consent authority may reject a modification application in certain circumstances (as is the case with DAs) and that those existing provisions relating to the withdrawal of DAs also apply to modification applications.

Provisions relating to the voluntary surrender and modification of development consents are to be updated in order to remove the requirement for landowner’s consent to be obtained in circumstances where the original DA could have been made without the consent of the landowner. Outdated terminology, which fails to consider the way in which notice of surrender can be given electronically (rather than providing a ‘duly signed and delivered notice’), will also be removed.

For modification applications and any applications to amend DAs that are undergoing assessment, new provisions are proposed which require applicants to provide greater detail of the changes proposed, with applicants required to specify the name, number and date of any plans that have changed. It is hoped that the changes will assist consent authorities to better compare and consider any proposed modified development with that development originally proposed or approved.

Simplifying Stop the Clock, Concurrence and Referrals provisions

New notification requirements relating to requests for additional information, referrals to agencies for concurrence and the counting of assessment days are proposed, which require additional information to be provided to applicants in relation to when the relevant assessment periods are deemed to begin and end. In addition, new provisions are proposed which are aimed at:

• eliminating unnecessary concessional delays in assessment periods; and
• removing unnecessary requirements to notify concurrence authorities and approval bodies, where minor modification applications do not need to be referred to concurrence or approval bodies.

To remove any uncertainty as to what period of time has lapsed in relation to an undetermined DA or modification application (particularly when it comes to working out “deemed refusal” period), when issuing an information request, consent authorities will be required to clearly outline the number of days that have lapsed in the assessment period and notify the applicant that the clock will cease to run whilst the request remains unanswered.

Revising Planning Certificates

New requirements for planning certificates are proposed that are intended to focus their content on land use and development controls, which are integral considerations in the conveyancing process. Under the Draft Regulation, in addition to existing requirements councils will be required to include reference to:

• any draft Development Control Plans that are or have been subject to community consultation or public exhibition; contribution plans for the land;
• a list of exempt development;
• any affected building notices or building product rectification orders;
• the identification of biodiversity land; and
• any applicable policies on hazard risk restrictions.

Designated Development

The Draft Regulation proposes amendments that seek to modernise development categories that trigger designated development by introducing new categories for emerging technologies that have the potential to cause significant environmental impacts. Examples of this include land used for energy recovery from waste, contaminated groundwater treatment, oil or petroleum waste storage and large-scale battery storage facilities.

In addition, it is proposed that some existing State Significant Developments will be reclassified as designated development, which would in turn attract third party merit appeal rights, such as geosequestration and desalination systems. Categories of development will be updated based on industry changes to exclude lower risk activities, such as small poultry farms, small concrete works, mixed feedlots of multiple species and bespoke breweries and distilleries.

The amendments are intended to align designated development thresholds with those thresholds specified in the Protection of the Environment Operations Act 1997.

Infrastructure and Environmental Impact Assessment

The proposed amendments retitle clauses to clearly refer to a ‘review of environmental factors’ (REFs) in order to distinguish the requirement to prepare a REF from the process for which an environmental impact statement is required under section 4.12 of the Act (i.e. where an activity is likely to have a significant environmental impact). The Draft Regulation further introduces a requirement for certain reports that determine whether an activity is likely to have a significant environmental impact (i.e. a REF) to be published on the determining authority’s website or the Planning Portal before the activity commences.  

Other changes in the Proposed 2021 Regulation of less significance include:

Development Contributions

Existing provisions in the 2000 Regulation will be carried over to the Draft Regulation, together with amendments made by the Development Contributions Regulation (2021). Additionally, practice notes relating to contributions plans are to be published online (rather than made available for inspection and purchase, as is presently the case).

Existing Use Rights

The current provisions relating to existing uses under the 2000 Regulation will carry over, except for one amendment, which will see the term ‘floor space’ replaced with ‘gross floor area’.

Fees and Charges

Changes are introduced to allow for minor adjustments in fixed fees each year, to account for movements in the consumer price index, with fixed fees to be referred to in terms of ‘fee units’ instead of dollar amounts.

Electronic communication

Outdated provisions will be updated to reflect advancements in technology, communication and the important use of the NSW Planning Portal. Communications will align with NSW Digital Government Strategy, acknowledging the capacity of current systems and the need to provide options for members of the community that are not digitally connected.

Miscellaneous provisions

Miscellaneous provisions will carry over the existing provisions with amendments that:

• clarify a ‘BASIX affected building’ does not include a boarding house that accommodates more than 12 lodgers or that has a gross floor area exceeding 300 square metres, seniors housing, a group home or hostel;
• include the definition of ‘gross floor area’ in the Dictionary; and
• change the definition of urban release area so that maps can be published online.

Exhibition

The Draft Regulation and supporting documents are currently on public exhibition and accessible here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.