Amendments to EPA Act have commenced

Significant amendments to the Environmental Planning & Assessment Act 1979 (“EPA Act”) introduced by the Environmental Planning & Assessment Amendment Act2017 commenced on 1 March 2018.

The amendments are comprehensive and represent the biggest overhaul of the EPA Act since its inception almost 40 years ago. This article outlines some of the major changes.

Renumbering and Reordering

The EPA Act has been renumbered and reordered (using decimal numbers). The previous 8 parts of the EPA Act are now rearranged into a 10-part structure. This will no doubt have textbook authors scrambling to issue revised editions and will also present a challenge for seasoned users of the Act mentally correcting old habits of reference to familiar sections to the new decimal references. It’s going to take some getting used to.

The reordering also means contracts and agreements that previously referred to sections in the EPA Act will be outdated. For contracts and agreements already entered into, references to section numbers remain valid. The Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (“Transitional Regulation”) provides that such a reference in any Act, statutory instrument or other instruments, or in any contract or agreement to a provision of the EPA Act that has been renumbered or relocated, is taken to be a reference to the renumbered or relocated provision.

Standardized Development Control Plans

Development Control Plans (“DCP’s”) will be required to conform to a uniform style (in much the same way LEP’s are currently required to conform to the Standard Instrument). At present, each local council has its own DCP and DCP’s vary wildly in both content and form making interpretation and implementation difficult. Hopefully, the introduction of a uniform style will assist with interpretation and result in greater consistency. Greater conformity of DCP’s will also facilitate integration with the NSW Planning Portal. If successful, this will contribute to making the information accessed from the Planning Portal more reliable and consistent with local planning constraints. The uniform style will be detailed in the regulations and has not yet been released. A deadline for DCP’s to conform with the uniform style has not yet been announced and we expect a general migration to the uniform style over coming years as local consent authorities review and update their DCP’s.

Enforceable Undertakings

Parties who have breached the EPA Act may enter into enforceable undertakings with the Department of Planning and Environment (“DPE”) in respect of the breach. Breaching parties and local councils will commonly negotiate the terms and conditions of the undertakings. The amendments to the EPA Act make provision for the Secretary of the DPE to accept and sign off on the terms of the enforceable undertakings. If an enforceable undertaking is subsequently breached, the Secretary may apply to the Land and Environment Court for orders:

• Requiring compliance with the undertaking,
• Directing the payment of money to the Secretary, or
• Requiring the breaching party to make good, abate, mitigate or repair any damage caused to the environment by the breach.

It is expected that the introduction of enforceable undertakings will give local consent authorities (and breaching parties) greater scope and flexibility to negate the effects of the breach and to negotiate better outcomes with respect to ongoing compliance as an alternative to litigation.

Community Participation Plans

In addition to the changes to local planning panels (and greater involvement of the community in strategic planning), Part 2 of the EPA Act, “Planning Administration” requires that consent authorities prepare Community Participation Plans (“CPP’s”). CPP’s will describe how local councils and other consent authorities will undertake community participation activities, for example, community consultations or public exhibitions, when exercising their planning functions. Schedule 1 of the EPA Act sets out which instruments and decisions must be notified to the community, the notification periods and other mandatory requirements and the exceptions to notification and exhibition periods.

Local Strategic Planning Statements

As well as ensuring compliance with DCP’s to a uniform style, local councils will now be required to prepare and adopt a Local Strategic Planning Statement (“LSPS”). In what may be a response to the ad-hoc rezoning of land within local government areas, local councils will be required to consider and adopt strategic planning priorities for their area. The LSPS must consider and describe the economic, social and environmental basis for the strategic planning of the local council area and describe actions to achieve those priorities. The LSPS must also describe the basis on which the council is to monitor and report on the implementation of those actions. In some local government areas, current planning proposals are being delayed to be considered as part of the broader LSPS and any future planning proposals will be required to address the ways in which the proposal furthers the local council’s strategic priorities set out in the LSPS.

Increased scope of Voluntary Planning Agreements

Planning agreements between planning authorities and developers extend not only to development that requires development consent but now to complying development. This extends the scope of planning agreements and the flexibility of local consent authorities to make use of voluntary planning agreements where they may result in a better outcome for developers and local communities. They also reflect the DPE’s intention to facilitate increased use of code-assessable complying development.

If you would like to find out how these changes affect your property or business contact our office to make an appointment.