Major changes to NSW planning laws

Property developers and owners, town planners, architects, engineers, investors and real estate agents are among the businesses affected by the significant changes to state planning laws.

The New South Wales parliament recently passed what are among the most significant changes in the almost 30-year history of the Environmental Planning and Assessment Act 1979. Some changes have already commenced, with others commencing in stages over the coming months.

Perhaps the most far-reaching are those covering the disclosure of political donations or gifts, as they impose requirements on applicants for development consent, those with a financial interest in the development and people making submissions to development applications.

Prior to these amendments, political donations were only required to be disclosed by councillors after an election and once every 12 months thereafter.

The new rules mean those who make a “relevant planning application” to a council are required to disclose “reportable political donations” and gifts made to any councillor or employee of that council within two years prior to lodgement of the development application.

The obligation to disclose rests with the person lodging the application, however the donation or gift may have been made by any person with a financial interest in the application.

A person is deemed to have a financial interest in the development application if they are:

• the applicant or the person on whose behalf the application is made
• an owner of the site to which the application relates or has entered into an agreement to acquire the site or any part of it
• associated with either of those types of people and likely to obtain a financial gain if the application is approved.

These new requirements commenced on 1 October 2008.

New decision-making bodies
Two new types of consent authorities are being proposed in addition to councils and the Minister for Planning:

• a Planning and Assessment Commission (PAC)
• Joint Regional Planning Panels (JRPPs)

The PAC will be the consent authority for most major projects and it is expected to determine about 80% of the applications currently determined by the Minister.

JRPPs will comprise five members - three appointed by the Minister and two appointed by councils from the local government area in which the panel operates.

The local government members will be rotated so that each council has its own members determining applications within the council area.

The number and areas of operation of JRPPs is yet to be determined, but they are likely cover at least two local government areas.

The types of development applications to be determined by JRPPs are yet to be detailed, but it is expected they will include:

• designated developments such as extractive industries, cement works and chemical industries
• nominated development over five million dollars such as certain private infrastructure (hospitals, education facilities, water supply works, waste facilities) or development where council is the proponent or has a significant financial interest in the matter
• commercial or retail development over $20 million
• residential or mixed-use development over $50 million.

Review bodies
Council decisions may now be reviewed by new planning arbitrators, a JRPP and the PAC. Current decisions may only be reviewed by the council that made the decision and the Land and Environment Court.

A planning arbitrator is a person approved by the Minister who may be designated for particular local government areas or particular kinds of development, and must have expertise in planning, architecture, heritage, urban design, law or engineering.

Indications are that planning arbitrator matters are likely to include:

• single or dual occupancy residential dwellings not exceeding two storeys and a specified height
• alterations and additions to such dwellings
• commercial or retail premises under nine metres in height or with a gross floor area of less than 2,000 square metres but excluding bulky goods and licensed premises
• a change of permissible use in commercial or retail premises with a gross floor area of less than 2,000 square metres
• any decision by a council that a DA may not be considered because of “insufficient information”.

New certification requirements
There is also to be an expanded range of development that is prescribed as exempt development, which will not require council approval and complying development which can be approved by an accredited certifier.

The government’s aim is to increase the number of applications being determined as complying development from the current level of 11% of all applications to 30% in two years and 50% in four years.

A new State Environment Planning Policy is to be completed that will incorporate compliance codes. Draft codes have already been prepared for:

• single storey houses on lots of land of 600 square metres and over
• internal alterations for two storey houses
• internal fit outs and change of use for certain commercial industrial uses.

For more information please contact Kells partner and Local Government, Planning and Environment Law Accredited Specialist Michael Mantei.