On 1 March 2022, the Environmental Planning and Assessment Regulation 2021 (‘the 2021 Regulation’) came into effect. It introduced key changes to the NSW planning system which aim to increase efficiency, simplify existing provisions and reduce assessment timeframes. We provide an overview of some of these key amendments below.

Development Applications

Lodging and Amending DAs

The 2021 Regulation has amended certain rules in relation to local development applications (‘DAs’). Notably, it standardises the DA form which is to be submitted on the NSW Planning Portal. A consent authority may then reject the DA if it does not contain the information and documents required by the approved form.

Further, for an application to amend a DA, if the amendment will result in a change to the development, the application must contain details of the change, including the name, number and date of any plans that have been varied. This seeks to enable a consent authority to clearly compare the proposed amendment with the original application.

The 2021 Regulation has also removed the requirement for landowner’s consent for the surrender or modification of a development consent, in cases where the original DA could have been made without the consent of the landowner.

It is important to note that the above changes do not affect state significant development or infrastructure made through the Environmental Planning and Assessment Amendment (Major Projects) Regulation 2021.

Assessment Timeframes

The 2021 Regulation has restructured and simplified existing rules relating to ‘stop the clock’ provisions ‘deemed refusal’ periods.

Importantly, assessment timeframes have been slightly reduced as to avoid unnecessary delays. For example, the requirement of two concessional days at lodgment of an application, and further two concessional days relating to an agency’s request for additional information, have both been removed.

Additionally, when issuing an information request, a consent authority must:

• specify a reasonable period in which the information must be provided;
• specify the number of days that have elapsed in the assessment period; and
• inform the applicant that the assessment period ceases to run between the date the request is issued and the date the applicant provides the information or notifies the consent authority that the information will not be provided.

Amendments to DAs and Modification Applications

The 2021 Regulation requires a consent authority to indicate via the NSW Planning Portal whether it agrees to a proposed amendment of a DA or a modification application prior to determination.

It also must indicate whether it considers the proposed amendment to be ‘minor’.

• If so – the ‘deemed refusal’ clock will not restart.
• If not – the consent authority must then also indicate whether it requires the ‘deemed refusal’ clock to restart.

Complying Development Certificates (‘CDCs’)

The 2021 Regulation requires CDC applications to include:

• details on site configuration and building envelope;
• detailed engineering plans for telecommunications or electricity works;
• a site plan that is drawn to scale; and
• the maximum site coverage of the land.

The CDC will also need to contain a detailed list of reports, studies, plans, and documentation relied upon to determine the application, along with sufficient guidance on how and where the documents can be accessed.

Additionally, pre-approval notices given to neighbours and the council will need to include the name of each relevant EPI, including the relevant complying development code under which the CDC has been proposed, as well as the site plan that accompanied the application.

Environmental Impact Assessments

The 2021 Regulation also amends requirements in relation to Environmental Impact Assessments in order to ensure consistent and comprehensive assessments are being undertaken.

It requires a determining authority to publish certain reports that determine whether an activity is likely to have a significant environmental impact (i.e. a Review of Environmental Factors report) on their website or the Planning Portal before the activity commences. However, this only applies where:

• the development has a capital investment value greater than $5 million; or
• the determining authority considers that it is in the public interest to do so.

Additionally, the 2021 Regulation empowers the Secretary of the Department of Planning and Environment to prescribe the environmental factors to be taken into account by a determining authority when considering the likely impact of an activity, and the form of the document required to be prepared by a determining authority.

Electronic Documents

The 2021 Regulation removes requirements for hard copies of documents, and instead requires that documents be made available online or electronically. It also provides that any provision which requires a document to be delivered, posted or published can be satisfied through electronic methods. For example, the register kept by a Council of DAs and development consents must now be kept in electronic form and published on the Council’s website.

Conclusion

The 2021 Regulation has implemented a range of amendments to the operation of the current NSW planning system. As such, it is important that developers in both the public and private sector consider the changes implemented by the Regulation and adjust their planning application and assessment processes accordingly.

Keystone Lawyers can assist with advising on your rights and obligations under these recent reforms.