18 June 2021

Standard conditions on the way for development consents in NSW

NSW State Government will implement standard conditions and a standard format Notice of Determination for use by consent authorities

The NSW Department of Planning, Industry and Environment (DPIE) has announced the State Government is moving to standardise conditions imposed on development consents granted by consent authorities for local and regionally significant development.

Currently, consent authorities are responsible for the drafting and imposition of conditions of consent as they deem appropriate with only a small number of “prescribed conditions”, relating to a limited scope of issues, mandated by division 8A of the Environmental Planning and Assessment Regulation 2000 (Regulation).

Many councils have developed their own sets of “standard” conditions over the course of several years and it is usually the task of the assessing officer to ensure relevant conditions are imposed on consents. This is often the last step in the development assessment process.

While there are some similarities, conditions differ from council to council meaning that developers working either side of a local government area boundary can be faced with vastly different issues when acting on consents issued by neighbouring councils. There are also examples of very similar developments within the same local government area being subject to different conditions of consent.

The changes

The DPIE has developed a standard set of conditions of consent (Standard Conditions) with the stated aims of speeding up assessment times, providing greater consistency and certainty for consent holders and making development consents easier to navigate.

The Standard Conditions will be implemented for residential development in the first instance, with standard conditions for non-residential development to follow.

The Standard Conditions will include:

  • Mandatory Conditions – an expansion of the current “prescribed conditions” under division 8A of the Regulation, the mandatory conditions must be imposed by consent authorities on all applicable development consents and cannot be excluded

  • Model Conditions – standard-worded conditions relating to issue/site-specific matters that a consent authority may choose to impose on applicable development consents.

Consent authorities will still have the ability to impose their own, additional conditions – to be known as Bespoke Conditions – which will be drafted by, and imposed at the will of, consent authorities to deal with issue/site-specific matters.

The Standard Conditions that have been prepared can be accessed here: Standard conditions of development consent - residential development

The DPIE has prepared a new guide on drafting conditions of consent, which will assist consent authorities with the drafting of Bespoke Conditions. The guide can be accessed here: Guide to writing conditions of consent

The DPIE is also in the process of developing a standard format for notices of determination which are issued to applicants for development to evidence that consent has been granted and include the conditions.

Timing

The Regulation will be amended on 1 July 2021 to include the new mandatory conditions and the requirement for consent authorities to use the standard format notice of determination.

The changes are expected to commence on 1 September 2021 and from that date, consent authorities will be required to issue notices of determination for residential development in the standard format and subject to the Standard Conditions, via the NSW Planning Portal.

However, as the Standard Conditions have already been developed and published, they are available for adoption by consent authorities immediately should they choose to do so.

The standard format notice of determination and standard conditions for other (non-residential) types of development remain under preparation.

Advantages and potential disadvantages

If the Standard Conditions contribute to the DPIE’s aims of speeding up assessment times, providing greater consistency and certainty for consent holders and making development consents easier to navigate then they will be a beneficial and welcome addition to the NSW planning system.

State-wide consistency as to conditions of consent that can be expected to be imposed for certain types of development will benefit development proponents and will provide greater certainty as to post-consent requirements.

In some cases, the Standard Conditions will consolidate and/or reduce the amount of conditions to be satisfied.

The Standard Conditions will also be subject to regular review and update, so that they remain current and relevant to development in NSW – a criticism that can and has been made of conditions drafted by consent authorities in the past.

However, it will be interesting to see how the Standard Conditions work in practice.

A one-size-fits-all approach does not always work and the conditions relevant to a single dwelling house will differ from those of a residential flat building.

The DPIE has undertaken consultation with stakeholders and conducted testing through certain councils, however, awareness of the changes and planning for their implementation does not appear to be anything near universal.

Potential consequences of the Standard Conditions could include that:

  • greater responsibility is placed on private certifiers to interpret conditions and determine whether they apply in each instance, leading to disputes between certifiers and development proponents/consent authorities

  • consent authorities seek to utilise Bespoke Conditions to address perceived shortcomings on issues dealt with specifically by Mandatory Conditions or Model Conditions

  • disputes arising as to the lawfulness of Bespoke Conditions and inconsistencies between Bespoke Conditions and Mandatory Conditions and/or Model Conditions in a consent.

Time will tell whether the Standard Conditions have practical implementation issues or whether they achieve their aims.

Update as of July 2021

As of 1 July 2021, the Regulation has not been amended to reflect the changes and the standard form notice of determination has not been published.

The latest information published by the DPIE is that:

  • The standard conditions will be rolled out via the Planning Portal by the end of July 2021;

  • The changes to the Regulation will come into force, and the use of standard conditions and notices of determination for residential development will become mandatory, in December 2021.

We expect the amendments to the Regulation will be made by the end of July 2021 or shortly after to allow industry stakeholders (particularly consent authorities) to review them and familiarise themselves with them.

Author: Steven Griffiths

Contributing partner: David Creais