Standard Conditions and Notices of Determination set to become mandatory from December 2022

In 2021, the NSW State Government announced its plan to introduce standardised conditions of development consent and notices of determination for development applications under the “NSW Planning Reform Action Plan”.

This was discussed in our article Standard conditions on the way for development consents in NSW published on 18 June 2021, updated in July 2021.

The plan has moved a step forward as, in September 2022, the Environmental Planning and Assessment Amendment (Notice Requirements) Regulation 2022 (Amending Regulation) was made and will see the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) amended as of 23 December 2022 to include the requirement that consent authorities now prepare notices of determination in a standard format via the NSW Planning Portal.

Standard Notices of Determination

Traditionally, consent authorities have developed their own style and format for notices of determination issued to evidence the determination of development applications, modification applications and applications for review. These have been commonly reviewed and refined over time.

However, the Amending Regulation now provides that in addition to the existing requirements of regulations 87, 118 and 246 of the EPA Regulation they will include the requirement for notices of determination of development applications, modification applications and applications for review to be given in the “approved form”.

The “approved form” is the standard format notice of determination, which is now available via the NSW Planning Portal (Portal).

The use of the standard format notice of determination by consent authorities for local and regional development will become mandatory from 23 December 2022 (or 1 May 2023 for councils still finalising systems compatibility with standard format notice of determination).

The standard format notice of determination will not apply to complying development, State significant development or Crown development.

Standard Conditions of Consent

The standard conditions for residential development have been revised since first publication in May 2021. They address general matters and the various steps to be undertaken that are common in the residential development process.

Bespoke conditions remain part of the reforms and are available to consent authorities to address matters not covered by the standard conditions (but must not conflict with standard conditions).

The standard conditions can be added to the standard format notice of determination via the Portal and their use for residential development by consent authorities will become mandatory from:

• 23 December 2022; or

• For councils still finalising systems compatibility with the Portal, 1 May 2023.

Use of the standard format notice of determination or the standard conditions will not apply to:

• Development applications lodged but not determined prior to 23 December 2022;

• Modification applications associated with an original development application that was lodged prior to 23 December 2022; and

• Applications for review associated with an original development application that was lodged prior to 23 December 2022.

Consent authorities and applicants for development alike are encouraged to familiarise themselves with the standard format notice of determination and standard conditions for residential development before 1 December 2022.

Standard conditions for other development types (for example mixed use development, changes of use, food and drink premises and demolition) remain in development and are currently on exhibition until 11 November 2022.

Advisory Notes

Many councils also include “advisory notes” in current notices of determination.

Provided to assist applicants for development with common requirements, responsibilities and sources of information, such notes are non-mandatory, are not conditions of consent and do not formally form part of the determination.

The ability for councils to provide advisory notes will remain, and advisory notes will be provided in a separate document and not part of the standard format notice of determination.

Implications

As discussed in our previous article, the benefits of introducing standardised notices of determination and conditions of consent will be the enhanced consistency between consent authorities, state-wide.

Increased consistency will promote increased efficiency in approvals and may lead to a decrease in challenges to the validity of conditions of consent. This will not be eradicated entirely, however, as drafting and application of bespoke conditions will continue to be a potentially contentious area.

It is rare that a one-size-fits-all approach will guarantee a successful regime, especially when consent authorities assess a range of applications under different statutory and policy instruments.

There will no doubt be an initial period of adjustment as consent authorities become familiarised with the standard conditions and, particularly, bespoke conditions.

Regular and impartial review of standard conditions, and to the content and application of bespoke conditions will be critical to the success of this particular reform.

Authors: Alisha Kinkade & Steven Griffiths