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Draft Environmental Planning & Assessment Regulation 2010 A03/0117 Report dated 25 October 2010 from the Acting Director, Planning and Environmental Services providing a summary of the proposed amendments for the Draft Environmental Planning and Assessment Regulation 2010. Recommendation: It is recommended that Council:

1. Receive and note this report. 2. To endorse the submission on the Draft Environmental Planning & Assessment

Regulation 2010 and forward to the Department of Planning. Purpose of Report The purpose of this report is to advise Council of the proposed amendments to the existing Environmental Planning and Assessment Regulation 2000 (2000 Regulation) through the Draft Environmental Planning and Assessment Regulation 2010 (draft 2010 Regulation). Background / Introduction On 17 September 2010, the Department of Planning released the draft 2010 Regulation for public comment. A draft submission has been prepared and is included in Attachment A. The Environmental Planning and Assessment Regulation 2000 commenced on 1 January 2001 and plays an integral role in implementing the planning provisions of the Environmental Planning and Assessment Act 1979 (EP&AA). Under the Subordinate Act 1979, the 2000 Regulation was due to be automatically repealed on 1 September 2010. The Minister for Planning wrote to the Premier to request an extension of the deadline to enable the preparation of the 2010 Regulation. The majority of the current provisions in the 2000 Regulation are carried over in the draft 2010 Regulation without significant amendment. Key areas of policy change proposed include:

1. Development Assessment Process under Part 4 of the EP&AA; 2. Fees & Charges; 3. Planning Certificates; and 4. Other issues.

These proposed changes are outlined in further detail below. 1. DEVELOPMENT ASSESSMENT PROCESS UNDER PART 4 OF THE EP&AA As part of the NSW Planning Reforms, options were put forward in order to streamline and simplify development application (DA) assessment processes. The proposed changes include DA lodgement, requests for further DA information, DA assessment considerations, DA assessment periods and post determination issues.

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DA Lodgement Currently, Schedule 1 of the 2000 Regulation outlines what information must be included with a DA at lodgement. The draft 2010 Regulation also includes Schedule 1 with some minor changes. These include requiring the inclusion of drawings, roof plans and compliance tables. It is proposed that once a DA is lodged by an applicant the following deadlines must be adhered to by the consent authority:

• 14 days – to review the legibility, clarity and completeness of the application; • 2 days – to forward the DA to the relevant State agencies (if required); • 14 days – to reject the DA and provide reasons for the rejection of the DA in writing

to the applicant. Requests for further DA information Table 1 below illustrates the proposed changes between the 2000 and 2010 Regulations with regard to requests for additional information. 2000 Regulation 2010 Regulation • 25 days to request additional

information after DA lodgement • 21 days to request additional information

after DA lodgement • Ability to request additional information

several times • Additional information can only be

requested once • Applicant generally has 30 days to re-

submit information but can request an extension

• Applicant must re-submit information within 21 days

Table 1 Proposed changes – requests for additional information DA Assessment Considerations The draft 2010 Regulation proposes three additional matters for consideration under Section 79C of the EP&AA when determining a DA, including:

• NSW Government’s sea level rise planning benchmarks; • Australian Standard AS2601-2001: The demolition of structures; • Consideration of the scale and nature of development when requiring existing

buildings to fully or partially comply with the Building Code of Australia.

DA Assessment Periods The current deemed refusal periods within the 2000 Regulation are 40 days from lodgement of the DA and 60 days for DAs for integrated development, designated development and development requiring concurrence. The draft 2010 Regulations includes a change in the deemed refusal periods in accordance with the following:

• 90 days for designated development, integrated development, DAs requiring

concurrences or threatened species consultation, or DAs involving SEPP 65 panels, independent hearing and assessment panels, the Planning Assessment Commission or joint regional planning panels.

• 50 days for all other DAs.

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The proposed process for assessing DAs is outlined in Attachment B. Post Determination Once development consent is issued, applicants generally have 5 years to physically commence the works approved. If work has not commenced by that date then the consent lapses. The draft 2010 Regulation will now include a description of the circumstances in which work is not taken to be physically commenced, for the purposes of determining when a development consent lapses. Implications Significant changes are proposed to assessment times which have implications on applicants and Council. Firstly, if additional information is requested by the consent authority then applicants will only have 21 days to prepare it. This may not be practicable for certain applications. Secondly, the time frames proposed may not be feasible for staff to consistently implement. Of particular concern are the DAs that require referral to State agencies within 2 days. These applications are often more complex and therefore require in-depth assessment by senior staff before referral. This type of assessment may not be feasibly undertaken by the Duty Officer at the time of lodgement. 2. FEES AND CHARGES Currently BASIX Certificates do not attract a fee. The Department of Planning are proposing to prescribe a fee for a BASIX Certificates in order to support the ongoing maintenance of the website which includes “upgrades as required to meet new national standards and community demands for enhanced online residential sustainability tools and resources”. At this stage it is not clear how much the fee will be for a certificate. Fixed planning fees and charges are also proposed to be updated to take into account movements in the consumer price index sine the fees were last revised. 3. PLANNING CERTIFICATES The main change proposed in the draft 2010 Regulation is to remove certain information from Section 149(2) planning certificate (basic planning certificates) and include those matters as mandatory matters on Section 149(5) planning certificates (full planning certificates). The proposed changes above are “intended to focus the content of the certificates on land use and development controls essential to conveyancing. A refined planning certificate will limit the legal risks and practical difficulties for councils and the property industry caused by overly complex, onerous and cumbersome certificates that may include invalid or out-dated information. Additional information on basic planning certificates The following additional items are proposed to be included within basic planning certificates:

• Identification of land zoned and land use provisions set out by certain State Environmental Planning Policies; and

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• Coastal erosion hazard policies that restrict development on land. Information not to be included on planning certificates The information proposed to be removed from both basic and full planning certificates is land identified or affected by the operation of Section 38 or 39 of the Coastal Protection Act 1979. Implications Currently, there is no prescribed list of information to be included on a full planning certificate. The proposed change to prescribe matters for inclusion on a full planning certificate will not however affect the type or amount of information councils need to manage as they currently manage this same information for Section 149(2) planning certificates. The proposed change also does not affect a council’s discretion under Section 149(5) of the EP&AA to include any other matters they are aware of on a full planning certificate. Council will need to amend the basic planning certificate and full planning certificate templates to ensure that the correct information is included and/or removed from both. Following internal discussions of the proposed changes it is anticipated that implementing these changes may take at least one week. 4. OTHER ISSUES The draft 2010 Regulation includes other proposed changes which are listed below: • Extension of the savings and transitional period for existing development control plans

beyond March 2011 to allow Councils time to prepare Standard Instrument local environmental plans (SI LEPs) and supporting DCPs;

• Removal of the 1000 square metre floor space limit for ‘change of use’ provisions relating to commercial existing uses;

• Including coastal processes and sea level rise as additional matters for consideration when assessing activities under Part 5 of the Act; and

• Minor changes to classes of designated development. ANALYSIS • Financial Nil • Management Plan This report responds to the proposed NSW Planning reforms being

undertaken by the Department of Planning and is consistent with the 2008-2012 Management Plan to ‘ensure that policies and guidelines are in place to deliver good design outcomes’. (Page 73)

• Consultation This report has been written in consultation with the Acting Divisional

Manager, Strategic Land Use and Planning. TIMEFRAME The Draft 2010 Regulation was released by the DoP on 17 September 2010 and is on public exhibition until 5 November 2010.

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All submissions are due on 5 November 2010. At this stage it is unclear when the Department of Planning intend to implement the 2010 Regulation. It is worth noting that the original deadline prescribed in the Subordinate Act 1979 was 1 September 2010 and therefore the Regulation may be in effect in the next few months. Recommendation: It is recommended that Council:

1. Receive and note this report. 2. To endorse the submission on the Draft Environmental Planning & Assessment

Regulation 2010 and forward to the Department of Planning.

George Bramis Acting Director - Planning and Environmental Services Report Author: Dan Starreveld, Strategic Planner

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Our Ref: A03/0117 22 October 2010 Policy, Planning Systems & Reform NSW Department of Planning GPO Box 39 SYDNEY NSW 2001 Dear Sir / Madam,

SUBMISSION FOR DRAFT ENVIRONMENTAL PLANNING & ASSESSMENT REGULATION 2010

Thank you for the opportunity to provide comments on the draft Environmental Planning & Assessment Regulation 2010 (2010 Regulation). It is understood that the current EP&A Regulation 2000 is required to be regularly updated to ensure that it effectively implements the provisions of the Environmental Planning & Assessment Act 1979 (EP&AA). The amendments clearly convey the Department’s intention to continue to streamline the development assessment process, however there may be some oversights in the proposed requirements which may not be practicable for Councils to effectively implement. As a general comment, some of the supporting information made available for public comment is vague in nature and does not reflect the full implications of the proposed changes. The following points are raised as matters of consideration for the Department. Development Assessment Process With respect to the proposed time frames under Part 4 of the EP&AA, there is some confusion related to whether days will be counted as calendar days or working days. The 21 day time frame proposed for the submission of additional information may be impractical for many applicants, particularly for larger and more complex development applications (DAs). The shorter time frame may also result in more applications being refused on the basis of inadequate information which costs applicants time and money. From the information provided, it is unclear whether Councils must reject the application at the end of the 21 day period or whether an extension may be granted. In this instance, further guidance is sought as to any limits there may be on extensions granted to applicants. Of particular concern are the DAs that require referral to State agencies within 2 days. These applications are often more complex and therefore require in-depth assessment by senior staff before referral. Should “days” be counted by the calendar then applications submitted on a Friday afternoon would require an in depth assessment and referral by the Sunday afternoon. It is recommended that this 2 day period should commence once an in-depth assessment has been carried out to ensure that applications referred to State agencies are indeed legible, clear and complete. The proposed time frames are very tight particularly for Council’s that receive high volumes of DAs.

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Post Determination Although the draft 2010 Regulation provides instances where works have not physically commenced, there are no clear or prescriptive definitions of when works have actually physically commenced. Fees and Charges Further information is required relating to an approximate cost for a BASIX certificate. It is also unclear as to when the fee will be applied particularly for developments that undergo a number of amendments and modifications through the design and/or development assessment process. The manner in which these fees will be collected is also unresolved (e.g. whether the fee will be paid at the BASIX website or over the Duty Counter). General Comments The Department should provide all Councils with adequate notice of the commencement date for the draft 2010 Regulation. There are a number of internal processes and procedures that require significant changes including an update of planning certificate templates & DA letters, DA lodgement and assessment processes and a briefing to all relevant Council staff to ensure the proposed changes are implemented effectively. If you would like more information in relation to this submission, please contact Dan Starreveld, Strategic Planner on 9369 8053. Yours Faithfully, George Bramis Divisional Manager – Strategic Land Use Planning

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