June 2010

Environment & Planning Update - Infrastructure NSW, lapsing consents

In this bulletin, we report on the planning policies of the NSW Coalition and provide an update on recent amendments to the EPA Act in relation to lapsing provisions, and the concept of physical commencement of works.

Debrief: The Opposition Proposition

Bartier Perry recently hosted a presentation by Brad Hazzard MP, Shadow Minister for Planning, Infrastructure, Redfern-Waterloo. Mr Hazzard outlined the NSW Coalition's planning policy should it win the next State election.

Mr Hazzard foreshadowed three key policy initiatives:

First, a new agency, Infrastructure NSW, presided over by a Coordinator General with authority to resolve issues in obtaining concurrences and approvals, will be established. All relevant departments will report to the Coordinator General.

Second, the Environmental Planning and Assessment Act 1979 will be overhauled in the following areas:

  • The draft Bill of the new planning Act will be finalised within 18 months of the Coalition forming Government

  • Part 3A will eventually be abolished and the Joint Regional Planning Panel may go

  • The Planning Assessment Commission will continue for significant developments

  • Increased transparency will be achieved by removing some decision making powers currently with the Minister for Planning

  • The Department of Planning will no longer be a consent authority and will return to its fundamental purpose of planning for the State

  • Exempt and complying codes will be expanded to address present limitations (for example bush fire prone land)

  • While the new planning legislation is being implemented, the Planning Assessment Commission (not the Minister) is likely to be given powers to determine Part 3A Applications.

Third, a separate Minister for Heritage will be appointed to address the conflict of interest faced by the current Planning Minister who is responsible for both development and heritage conservation. This will involve the removal of heritage agencies from the planning portfolio.

In response to questions raised by attendees, Mr Hazzard confirmed that a Coalition Government will consider other initiatives such as value capture taxes, and noted that the Coalition welcomes, but will not enforce, amalgamations of Local Government Authorities.

Planning Law Update

The Environmental Planning and Assessment Amendment (Development Consents) Act 2010 came into effect on 26 May 2010.

The Act amends the timeframes in the Environmental Planning and Assessment Act 1979 for the lapsing of development consents (section 95). At present, some development consents are granted with a lapsing period of two years, rather than the maximum five years allowed for by the Act. The amendments are aimed at giving consent holders additional time to carry out their developments.

The amendments to the Act result in the following:

  • All Development Consents will only lapse five years after the date of operation

  • While a consent authority may reduce the period of five years, that reduction is to be disregarded if:

    • The development consent operated before and lapses after 26 May 2010, or the development consent lapsed during the period commencing on 22 April 2010 and ending on 26 May 2010; or

    • The development consent operated before, and lapses a date after 1 July 2011 as prescribed by the regulations

  • Further, a reduction of the lapsing period of five years from the date of operation may not be made during the period 26 May 2010 and ending on 1 July 2011 (or longer period prescribed by the regulations).

Physical Commencement of Works

The amendments also seek to address uncertainty in respect of circumstances in which work has been 'commenced', so that the right to develop will not be lost.

The existing test of whether a development consent has lapsed is whether a development has been 'physically commenced'. Unproclaimed provisions in the Environmental Planning and Assessment Amendment Act 2008 would have introduced a two stage test that required physical commencement within five years, and substantial commencement within seven years. The government believes that the two stage test was complex and would prove difficult for all parties to administer and practice.

The Land and Environment Court has, from time to time, been asked to consider the concept of \'physical commencement\'. As a result of ongoing uncertainty, the Act has now been amended so that the regulations will define circumstances that will satisfy the test of physically commenced. These regulations have not yet been made.

The State government proposes to consult key stakeholders prior to the making of the regulations. Once finalised, the regulations will provide guidance in determining whether works undertaken satisfy the physical commencement test.

In the meantime the existing statutory test of physical commencement remains.

Stay tuned for further developments!

Author: Dennis Loether