The NSW Department of Planning, Industry and Environment has released a draft Environmental Planning and Assessment Regulation 2021 (NSW) for consultation.

The regulation will make changes to numerous aspects of the planning system, including in relation to development applications and modifications, designated and complying development and assessments under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW).

Snapshot

  • The NSW Department of Planning, Industry and Environment (DPIE) has released the draft Environmental Planning and Assessment Regulation 2021 (Regulation) for consultation.
  • The Regulation is intended to simplify the planning regime, increase transparency and reduce “red tape”.
  • The Regulation is expected to commence in March 2022.

Although the new Regulation will, for the most part, retain the provisions of the Environmental Planning and Assessment Regulation 2000 (NSW) (Current Regulation), it will also introduce important changes to the planning system:

 

  1. Development applications and modifications to be standardised and simplified

Development applications must  be made in a new approved form. Consent authorities will be able to reject applications which do not include all information and documents specified in the approved form.

Other changes to development applications and modifications will include:

  • clarifying “stop the clock” provisions (affecting when appeals may be commenced);
  • removing requirements for landowner consent to surrender or modify a consent where the original development application could have been made without landowner consent;
  • clarifying that withdrawal provisions afforded to development applications apply to modifications; and
  • aligning the definition of “floor area” in the Current Regulation with the definition of “gross floor area” in the Standard Instrument – Principal Local Environmental Plan (to ensure consistency in how floor area is calculated when determining increases in floor area which have the benefit of existing use rights).

What this means for you: the new requirements for development applications may increase the risk of applications being rejected, but may also improve decision times by ensuring relevant information is provided to the consent authority.

 

  1. Additional factors to be considered in Part 5 assessments, plus new guidelines to assist determining authorities

The Regulation will introduce two additional factors to be considered by determining authorities when making assessments under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act):

  • any environmental factors that may be relevant to the likely impact of an activity on the environment, not just those factors listed in clause 228; and
  • any strategic plans made under Part 3 of the EP&A Act, including local strategic planning statements and regional and district plans.

The Secretary of DPIE will also be able to prescribe guidelines regarding the form of environmental assessments under Part 5 and factors to be taken into account when considering whether an activity will be likely to have a significant impact.

Determining authorities will also be required to publish assessments and reports used to determine whether an activity is likely to have a significant impact where the activity has a capital investment value of more than $5 million, requires additional statutory approval or where it is in the public interest to do so.

What this means for you: the proposed changes to assessments under Part 5 will increase the transparency and rigour of the Part 5 process.  But Authorities will need to carefully monitor and implement these reforms in practice, or face an increased risk of Part 5 determinations being subject to new legal challenges.

 

  1. Additional information will be required for complying development certificate applications

The Regulation will require increased information to be submitted with complying development certification applications, including site configurations, engineering plans (for telecommunications or electricity works) and site plans.

Complying development applications on land that is on the list of sites notified under the Contaminated Land Management Act 1997 (NSW) will also need to be accompanied by a site audit statement.

What this means for you: increasing the information to be provided with complying development certificate applications will mean more work for applicants prior to lodgment, but may reduce administrative burden and the likelihood of delays for certifiers.

 

  1. Changes to categories of designated development

The Regulation will introduce changes to categories of designated development (being developments which are high-impact (e.g. likely to generate pollution) and which require an environmental impact statement (EIS) to be prepared) by adding new categories and removing lower risk categories.

New categories have been added to capture emerging technologies including energy recovery from waste, contaminated groundwater treatment and oil and petroleum waste storage.

Categories that have been removed include low risk solar energy generation and small scale concrete works.

Threshold and definitions relating to designated development categories will also be more closely aligned with categories of scheduled activities under the Protection of the Environment Operations Act 1997 (NSW).

What this means for you: Applicants in industries involving the new categories of designated development should familiarise themselves with the new categories. Applicants will need to carefully consider proposals against the revised categories to ensure that they follow the EIS requirements.

Next steps

The Draft Regulation is open for comment until 22 September 2021 and can be found here.

By Peter Briggs, Partner, Daniel Webster, Senior Associate and Brigitte Rheinberger, Solicitor.

Peter Briggs
Peter Briggs
Partner, Sydney
+61 2 9225 5155
Daniel Webster
Daniel Webster
Senior Associate, Sydney
+61 2 9225 5556
Brigitte Rheinberger
Brigitte Rheinberger
Solicitor, Sydney
+61 2 9225 5750