New Planning Laws in NSW

  • 23 Mar 2018
DA (development application) processes have been given a fillip under changes to the Environmental Planning & Assessment Act which took effect this month.
Notable changes are:
Councils no longer determine DA’s – the EP&A Act now limits DA determination to either a Local Planning Panel or a Council officer under delegation. There is to be no Council meeting to decide any DA.
Local Planning Panels are now compulsory in Sydney and Wollongong, and will become mandatory in regional areas over time. While Councils can delegate functions to either an officer or a Local Planning Panel, under a Ministerial directive, only Local Planning Panels can determine DA’s where:
  • Council (or a Council member) is involved in the DA;
  • the Applicant wants to vary a development standard by more than 10%;
  • there are 10 or more submissions on the DA;
  • a Voluntary Planning Agreement s involved; or
  • the DA involves liquor sales, clubs or sex services.
These changes are aimed at removing political influence from decision making, so that decisions will be based more on professional expertise. Any decision maker will need to publish its reason for the decision, to provide additional clarity.
District or Regional Panels (who replace the former JRPP) will now only consider DA’s where the capital investment value is $30 million or more (a $10 million increase from before): anything under will be assessed at Council level by either a Council officer or the Local Planning Panel. This aligns with the emphasis on professional determination, pushing decisions over larger projects to Council staff or Local Planning Panels.
DA commencement occurs when the consent is published on the NSW Planning Portal, ending an uncertainty about commencement dates often found on development consents.  Click here for the NSW Planning Portal.
Integrated Development has been given extra flexibility.  If liaison between the Council and other government agencies has stalled the Planning Secretary can step in on Council’s behalf to resolve issues. And Integrated Development can now be reviewed under s.8.4 (it could not under the former s.82A).
A few matters to watch out for:
Building certification (CC’s OC’s etc) remains as is until 1 September 2018. From then on, they will come under Part 6 of the EP&A Act, and will include:
Subdivision Works Certificates – these new certificates are akin to a construction certificate for subdivision works, and will encompass everything that needs to be done, such as earthworks, drainage works, retaining walls, roads etc. Clarity is still needed as to whether a CC is needed as well for construction involved in the subdivision (eg for retaining walls) – hopefully this will be resolved by September.
Occupation Certificates will be accompanied by a “building manual”. While the precise contents of the building manual are yet to be clarified, the intention is for the owner to be given a single reference manual about the new building – plans, fire certification etc.   
Principal Certifiers (formerly the PCA - principal certifying authority) now have reduced flexibility in overseeing works. If a breach of a certificate occurs, the Principal Certifier must issue a breach notice, and if that is not complied with must refer it to Council for appropriate regulatory intervention.
And finally, the entire EP&A Act has been renumbered. S.94’s are now s.7.11’s, a s.149 certificate is now a s.10.7, and a s.96 modification is now a s.4.55.  We have prepared a ready reckoner of the main section changes for your ease of reference, here. 

Post by Robert Wilcher

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