New approach to rezoning in NSW

The NSW Department of Planning and Environment (Department) is currently in the process of introducing a new approach to the planning system to alleviate complexities in the rezoning process.

In December 2021, the Department released the Discussion paper ‘A new approach to rezonings’.

Uncertainty around rezoning time-frames and an overly complex process can impact development, viability of projects, community engagement and public participation. The Department has made several proposals with the intention that the new approach to rezoning will commence later in 2022.

Objectives of the new approach

The primary objective of this revised approach is to strengthen strategic planning in order to limit ad hoc, site-specific rezoning, which is likely to cause inefficiencies and subsequent delays.

The reforms include new ways to achieve this objective by: 

1.   minimising the time required to process a proposal by a third by 2023; and

2.   establishing an appeals pathway for planning proposals to ease delays and progress rezonings that are consistent with strategic plans.

These proposals aim to support strategic planning by:

• simplifying the rezoning process and minimising duplication;
• creating more certainty and consistency by setting clear matters for consideration, timeframes and consistent fees;
• improving the transparency, trust and quality of proposals;
• enable councils to make decisions and bolster NSW Government’s role to support, monitor and assist councils where beneficial; and
• recognising private proponents in the process and giving recourse opportunities.

Key Proposals

Terminology

To prevent duplication and confusion, the Department proposes a streamlined approach to rezoning which includes replacing current terminology. For example, the new approach would see all council-led processes renamed ‘rezoning applications’ in place of ‘planning proposals’ and the relevant local plan-making authority (LPMA) would be described as the ‘Rezoning Authority’.

Categories and timeframes

Categorisation of applications during the pre-lodgment stage of the process aims to improve progress and provide parties with more certainty. The introduction of four categories include benchmark timeframes suggested for each stage and category of the new approach.

Roles

The shift in roles of the various parties under rezoning applications is expected to give councils greater responsibility, accountability and enable the more efficient use of resources. Additionally, the Department’s time and attention will be refocused on strategically significant proposals.

New process

The Department proposes changes at all levels in the process. Under the new approach, the scoping stage is suggested to be mandatory. This will build on the new Local Environmental Plan Making Guideline (LEP Guideline), by ensuring parties have the opportunity to discuss, provide feedback and clarify standard information required early in the process.

Once documents are lodged, the Rezoning Authority will check that the application is adequate, confirming in 7 days if the requirements have been met with a standard public exhibition period of between 14 – 42 days, commencing on confirmation (depending on the categorisation). Following exhibition, standardised matters of consideration will be assessed and decisions clearly communicated.

Fee Structure

Three different fee assessment options have been considered in order to structure fees more succinctly, being a ‘fixed’, ‘variable’ and ‘combined fixed and variable assessment fee’ structure. Each provides for the proponent to pay a fee at lodgment, covering the costs of the merit assessment and associated work. Additionally, the Department has considered a planning guarantee, which provides a fee refund if councils exceed the limit of assessment. Even where a fee refund is given, assessment and determination will continue. This considers the assessment ‘clock’, timing, refund amount and extension of time agreements.

New appeals pathway 

The current means of review includes a rezoning review and gateway review, both occurring during the early stages of the review process. The proposed reform would allow for a merit appeal direct to the Land and Environment Court. This would provide for conciliation and a final hearing if agreement is not reached. This new appeal pathway may increase the cost and complexity of proceedings, with some industry stakeholders suggesting that a non-judicial approach would be preferable, such as having appeals heard by the Independent Planning Commission rather than the Court, to resolve such issues more efficiently and with less expense.

Implementing the new approach

The Department suggests that the implementation of a new approach would use existing legislative provisions and mechanisms and that additional policy guidance and education for industry and councils is to be provided. The capability and use of NSW Planning Portal will also need to be updated to facilitate the introduction of the new approach.

What happens now?

The Department is currently in the process of reviewing submissions made in response to the discussion paper and finalising its policy position. We understand that the target for implementation of new reforms is expected to occur around mid 2022. Depending on the nature of the feedback provided by stakeholders during the exhibition period, we anticipate that a number of changes to those recommendations in the discussion paper may be made.

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.