Changes for public and private sector developments in proposed new Planning Regulations in New South Wales – Lexology

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New requirements for public and private sector developers are proposed in the long-awaited remake of the Environmental Planning and Assessment Regulation 2000, which is now out for public comment.
Following a series of changes to the Environmental Planning and Assessment Act 1979 (Planning Act) in the last few years, the New South Wales Department of Planning, Industry and Environment (DPIE) has released a draft remake of the Environmental Planning and Assessment Regulation 2000 (Planning Regulation), for public comment.
The proposed remake (Draft Regulation) includes changes which are designed to support recent policy development around the Planning Act and to bed down improvements in the planning process.  The proposed changes cover a wide range of key planning issues.  In this article, we have highlighted some of the key changes for government and large-scale developers.
Environmental impact assessment when development consent is not required
When is this relevant?
Some development does not need development consent or other approval under the Planning Act, but must be subject to a separate environmental assessment under Part 5 of the Planning Act instead. This scheme typically applies to various kinds of development by various public authorities, development for education facilities or electricity transmission and distribution infrastructure, and mining and coal seam gas (CSG) exploration.
In most situations, the proponent will prepare an assessment report and decide whether to proceed on the basis of that report (this is often described as a "self-assessment"). However, in some situations, including for mining or CSG exploration, an authority whose approval under other legislation is required for the development will review the proponent's assessment report as part of its consideration of the application for that approval.
The assessment report has become known, in practice, as a Review of Environmental Factors (REF). The Planning Act defines the proponent, or the authority whose approval is required and who is reviewing the REF, as the "determining authority".
The Planning Act and Planning Regulation currently provide determining authorities with a broad discretion as to how the assessment is done, as long as:
What changes are proposed?
The Draft Regulation proposes to use the term "Review of Environmental Factors" in legislation for the first time.
More importantly, the Draft Regulation would:
While the DPIE Secretary currently has the power to make guidelines, that power has not been exercised before. However, DPIE has announced that it is currently working on some guidelines, so they will be in place shortly after the Draft Regulation commences in early 2022.
We anticipate the guidelines will make REFs more rigorous and consistent in their form and approach. While this may produce better environmental outcomes, it will be important to ensure the guidelines allow enough flexibility in approach to cater for the vast spectrum of development types (from the very minor to the very substantial) to which this assessment scheme applies.
Designated development
Currently, Schedule 3 of the Planning Regulation identifies a variety of categories of development as "designated development". Designated development is development which needs development consent under Part 4 of the Planning Act but which also needs an environmental impact statement (EIS) and must be publicly exhibited. In addition, in many cases, an objector to a development application for designated development may appeal against the merits of a development consent which his granted for it, and that right is not available for other development which needs consent.
Some years ago, the list of designated development types was reasonably well aligned with the list of development types which need an environment protection licence under the Protection of the Environment Operations Act 1997 (POEO Act), in recognition of the greater need for environmental regulation of those types of development. However, the list of designated development has not kept pace with changes to the POEO Act list.
The Draft Regulation proposed to realign the two lists more closely. Key changes include:
Local development and complying development
The Draft Regulation proposes a collection of changes to "local development" (ie. broadly speaking, development which needs development consent but is not State significant development) and complying development (ie. development which needs a complying development certificate (CDC) instead of a development consent). Some examples are outlined below:
Local development
This should reduce disputes about processing times and triggers for "deemed refusal" appeal rights.
Complying development
Planning certificates
Planning certificates are issued by local councils under the Planning Act for a parcel of land to specify prescribed information about the zoning and other land use conditions and controls for that land.
Currently, planning certificates are required to be annexed to contracts for sale of land, and they are also used in due diligence for property development proposals or potential acquisitions.
The Draft Regulation proposes to reorganise and simplify the content and form requirements for planning certificates, to focus more on what is useful for prospective developers, buyers and sellers of land, and to direct them to other sources of information if it is available elsewhere.
What's next in NSW planning law reform?
The proposed changes to the Planning Regulation are on exhibition until 22 September 2021. Public and private sector developers should consider making a submission on issues of importance to them.
It is currently anticipated that the new Planning Regulation will commence on 1 March 2022.
Stakeholders in development which can be carried out without consent should look out for draft REF guidelines later in 2021.
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