Major Changes to the Environmental Planning and Assessment Act

The largest number of changes to the Environmental Planning and Assessment Act in almost 40 years will be implemented in early 2018. The Bill was approved by the Parliament on 23 November 2017 and is awaiting proclamation.

The primary purposes of the amendments have been identified as “to promote the confidence in our State’s planning system” and achieve 4 underlying objectives: to enhance community participation; to promote strategic planning; to increase probity and accountability in decision making; and to promote simpler, faster processes for all participants.

Some of the major amendments are:

  1. Make structural changes to the Act by introducing 10 principal parts with decimal numbering of all provisions; relocate certain provisions to schedules and regulations; and update the objects of the Act and the language used. This will mean learning new section numbers, but will hopefully assist with readability and clarity and therefore assist stakeholders to understand the Act and make it more accessible.
  2. The inclusion of additional objects to promote sustainable management of built and cultural heritage, good design and amenity of the built environment and the proper construction and maintenance of buildings. This will assist to ensure that the provisions of the Act are interpreted to achieve those objectives.
  3. The Act will require all planning authorities to prepare a community participation plan about how and when they will undertake community participation when performing relevant planning functions. Those plans will need to include: public exhibition from minimum periods; public notification requirements of plans or applications; and public notification of determinations and reasons for determinations.
  4. Planning authorities will need to consider new community participation principles that will advance the community’s right to be informed about planning matters that affect it and ensure that planning information is in plain English, is easily accessible and is in a form that facilitates community participation in planning and, further, that planning decisions are made in an open and transparent way and reasons are provided to the community so that they understand what decision has been made and how.
  5. The Act will require written reasons to be given for decisions made by planning authorities. This will potentially add time to the process. However, stakeholders will know the formal basis for a decision.
  6. Councils will be required to prepare and make a local strategic planning statement which must be reviewed every 7 years.
  7. Councils will be required to review LEPs at least every 5 years to determine whether they should be updated.
  8. Councils will have the power to impose a levy on applicants making development applications for the purpose of reimbursing council’s costs incurred in investigating and enforcing compliance with the requirements of the Act.
  9. Councils will have new investigative powers to suspend work under a CDC for up to 7 days to investigate whether the work complies with applicable development standards.
  10. Additional powers are given to the Land and Environment Court to review complying development certificates and construction, subdivision or compliance certificates if proceedings are brought within 3 months after the issue of those certificates.
  11. The current system permits applicants to apply to modify a consent to regularise work already constructed in breach of the development consent. This ability will remain. However, changes to the process include that: the consent authority needs to consider the reasons for the grant of the original consent; and it can impose a levy on applicants to deter unauthorised works.

Overall, the changes expand the powers of consent authorities and impose additional obligations on them for community participation and strategic planning. The expansion is likely to impact developers by increasing the cost of development and compliance as the provisions within the Act are tightened.