News

This update, outlines significant changes to the Environmental Planning and Assessment Act NSW (EP&A Act) which commenced on 1 July 2009. These changes establish joint regional planning panels (JRPPs) and affect how land is zoned.

These amendments not only establish a new consent authority regime for regional projects but open up the ability for JRPPs and others to commence the rezoning of land at a local level in NSW which has been the domain of Councils in the past.

Joint Regional Planning Panels

JRPPs commenced on 1 July 2009.

The Minister for Planning (Minister) has appointed 23 State Members for five JRPPs to cover Sydney East, Sydney West, Hunter and Central, Northern Region Joint Planning Panel and Southern parts of NSW.

A sixth JRPP will be established shortly which will cover western NSW.

JRPPs will act as the consent authority to determine regionally significant, and certain other types of development applications (DAs) as well as advise the Minister on planning and development matters.

Regionally significant development, which has been introduced into the Major Projects SEPP, which will be determined by the JRPP, includes:

• developments that has a capital investment value of more than $10 million which are not classed as major projects to be determined by the Minister;

• designated development;

• subdivision over 250 lots;

• the following development that has a capital investment value of over $5 million:

  • crown development;

  • development for the purposes of eco-tourism facilities;

  • some types of public and private infrastructure such as roads, rail and water supply systems;

  • where Council is the proponent or has a conflict of interest;

•  where the Council is a party to any agreement or arrangement relating to the development (other than voluntary planning agreements) and the development has a capital investment value of more that $5 million.

DAs that are to be decided by JRPPs must be lodged with the relevant council for assessment of the DA. However, the JRPP will determine the DA.

Appeals against the determination of a JRPP can be lodged in the Land and Environment Court.

How will lodged DAS be treated?

The changes to the classes of regional development do not affect any Part 4 DAs or Part 3A applications that have been made but not determined prior to 1 July 2009.

Local Environmental Plans 

New requirements and procedures for the preparation of local environmental plans (LEPs) were introduced on 1 July 2009.

Under the changes to the EP&A Act, draft LEPs have been replaced with “planning proposals”. A planning proposal sets out the effect and justification for making the LEP. 

Where an LEP is to be made, the following process is undertaken:

• a planning proposal is prepared by the relevant planning authority which in the majority of cases will be councils or, in certain circumstances, the Minister can appoint the Director General or other prescribed body to be the relevant planning authority including a JRPP.

• the planning proposal is entered into the Department of Planning’s on-line register of planning proposals where progress of the proposed LEP is monitored.

• the LEP Review panel will consider the planning proposal and the recommendation of the Department of Planning and will provide its recommendation for the gateway determination to the Minister

• the planning proposal is then provided to the Minister for a “gateway determination”. A “gateway determination” decides:

  • whether a planning proposal is to proceed, and in what circumstances;

  • the length of the community consultation that must be undertaken; and

  • any consultation required with State or Commonwealth Public Authorities.

• at the completion of the community consultation and after the LEP has been drafted, the Minister may make or vary the LEP.

How will current drafts LEPs be treated?
Where a council has resolved to prepare a draft LEP and the Director General has received notification of the resolution before 1 July 2009,  the plan will be prepared and made under the previous plan making provisions. However, draft “amending” LEPs (an LEP that contains only direct amendments of other environmental planning instruments) will continue to be made under the previous plan making provisions but only for the following periods:

• where a section 65 certificate has been issued before 1 July 2009 for 1 year until 1 July 2010

• where no section 65 certificate has been issued before 1 July 2009 - for 18 months until 1 January 2011
  
  

Postscript

Since this article was published the NSW Land and Environment Court has held  that the savings and transitional provisions for draft Local Environment Plans (LEPs) referred to above refer to a draft LEP being received by the Director General of the Department of Planning and not  notification of a resolution by Council to prepare a draft LEP.

This decision could  have had a significant impact on the status of a number of draft LEPs. However, the Environmental Planning and Assessment Regulation 2000 has been amended to reinstate, expand and clarify the application of the subject savings and transitional provisions to address this  important and sensitive transitional issue and protect a number of draft LEPs which were intended to be protected by the original drafting.

This update was produced by Herbert Geer. It is intended to provide general information in summary form on legal issues. The contents do not constitute legal advice and should not be relied upon as such.