23/08/2021

The NSW Department of Planning, Industry and Environment (DPIE) is seeking feedback on the draft Environmental Planning and Assessment Regulation 2021 (Draft EP&A Regulation).

Background to the Draft EP&A Regulation

The NSW Government has committed to improving the NSW planning system to ensure it is easy to use and understand and promotes strategic planning and integrity. The review of the existing regulation forms part of this broader commitment and follows the review of the Environmental Planning and Assessment Act 1979 (NSW) in 2018.

DPIE exhibited an Issues Paper in 2017 which outlined the key operational provisions of the current regulation. Stakeholder feedback received on the Issues Paper has been taken into account in drafting the Draft EP&A Regulation.

The proposed changes are intended to facilitate a more streamlined approval process and bring consistency and transparency across Councils. Developers should take note of the proposed changes and how they may affect their development assessment process. In particular, developers should be aware of changes to deemed refusal/stop the clock provisions which will impact an applicant’s time period for appeal to the Land and Environment Court – and changes to designated development triggers which may trigger requirements for more onerous environmental impact assessment and exposure to third party merit appeals.

Key components of the proposed changes

The Draft EP&A Regulation aims to simplify the NSW planning system and reduce outdated provisions. The key components of the proposed changes are outlined below.

Update to administrative processes

The Draft EP&A Regulation seeks to reduce administrative burden and increase procedural efficiency in relation to development applications and modifications. This will be achieved by updating application requirements and refining notification requirements. New provisions have been inserted to support electronic communication processes and remove requirements for hard copy documents.

In addition, the proposed amendments provide a more simple and unified framework in relation to planning certificates. These provisions seek to provide greater consistency across Councils and ensure interested parties can readily access information that is relevant, accurate and easy to interpret.

Deemed Refusal/Stop the Clock Periods

The Draft EP&A Regulation seeks to improve the development application process by simplifying the calculation of assessment and deemed refusal periods, stop the clock provisions and concurrent and referral provisions.

To improve the complying development certificate (CDC) application process, the Draft EP&A Regulation will require:

  • additional information to be provided as a part of any CDC applications, such as site configuration and building envelope;
  • all reports and documentation relied upon to determine the application to be listed on the CDC;
  • disclosure of site plans in a pre-approval notice;  
  • a CDC application in relation to contaminated land must be accompanied by a site audit statement; and
  • any CDC approved in relation to contaminated land must contain a condition that any site audit statement recommendations must be complied with;

The Draft EP&A Regulation has also been restructured and renumbered.

Designated Development Triggers

The Draft EP&A Regulation seeks to update and modernise the assessment system in relation to designated development. This will be achieved by:

  • introducing new categories of development to capture emerging technologies and varying existing categories based on industry specific changes;
  • removing lower risk photovoltaic solar energy generation and smaller scale poultry farms;
  • aligning categories with related state legislation to match thresholds, terminology and definitions; and
  • clarifying provisions around development applications for alterations and additions and removing certain Local Environmental Plan and Regional Environmental Plan exemptions.

To improve transparency, proponents undertaking certain activities will be required to publish environmental impact assessment reports and the Secretary will be able to prescribe guidelines for the form of environmental assessment for activities that do not require and environmental impact statement.

Further details on the changes are provided in the DPIE’s fact sheet.

The Draft EP&A Regulation is expected to commence on 1 March 2022.

Next steps

The NSW Government is seeking feedback on the proposed amendments in the Draft EP&A Regulation. Public comment is open until 22 September 2021.

You can access a copy of the Issues Paper here and make a submission Planning Portal website.

Please contact our Environment, Planning and Climate Change lawyers if you would like to understand what the proposed reforms could mean for you or would like assistance with making a submission on the Draft EP&A Regulation.

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