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Environmental Planning and Assessment Regulation 2021

The Environmental Planning and Assessment Regulation 2021 (Regulation 2021) came into force on 1 March 2022 and replaced the Environmental Planning and Assessment Regulation 2000 (Regulation 2000). Regulation 2021 largely continues to reflect its predecessor, but has been designed to improve the planning system by removing unnecessarily complex provisions and simplifying the system for all users.

A number of the key changes are outlined below.

Development Applications

Regulation 2021 requires that all development applications must be made in the approved form, which is located on the NSW Planning Portal, and must include all the information and documents specified in the approved form or required by the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Regulation. The development application (DA) may be rejected by the consent authority if it does not contain this information.

Applications to amend a DA which is still under assessment by the consent authority or to modify an approved DA are required to provide details of the proposed changes, including the name, number and date of any plans that have changed.
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New State Environmental Planning Policy for Housing Imminent

In December 2020, the New South Wales government announced its intention to introduce major reforms to the planning policies for housing.

The reforms were to be introduced in multiple phases. Phases 1 and 2 had been rolled out in late 2020 and early 2021. These reforms include amendments to the existing State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and introduction of the State Environmental Planning Policy Amendment (Build-to-rent Housing) 2021 (BTRH SEPP). The BTRH SEPP, notably, introduced purpose-built rental apartment buildings as a new type of land use, and permits these build-to-rent apartments to be developed on any zone where multi dwelling house, residential flat buildings, and shop top housing are permitted.

Phase 3 of the housing reform was introduced on 26 November 2021 with the enactment of the State Environmental Planning Policy for housing (Housing SEPP), which replaces the existing ARH SEPP.

Notable differences between the Housing SEPP and the ARH SEPP include the treatment of boarding house developments. Under the existing ARH SEPP, boarding house developments are permitted on land zoned R2 Low Density Residential, irrespective of whether the relevant Local Environmental Plans (LEP) permits boarding houses to be built in the Low Density Residential zone.
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Contracts Involving Public Authorities

Summary

Case summary re: 123 259 932 Pty Ltd (123) v Cessnock City Council (Council) (No 2) [2021] NSWSC 1329 (Cessnock case).

The decision of the Cessnock case demonstrates that public authorities, such as Councils should take reasonable action to ensure compliance with lease agreements and other related contracts. The case also highlights the importance of having knowledge of the assets held by another party, as expectation damages will not be awarded if there are no assets.

The Facts

In Cessnock Case, 123 sought damages against the Council for the breach of contract and unconscionable conduct.

Council was the landowner and developer. Council proposed to subdivide Cessnock Airport to include aviation and non-aviation uses. On 26 July 2007 an Agreement for Lease (AFL) was executed by the parties for one of the subdivided lots. To successfully lodge a development application on itself, the Council split its role as developer and its role as the regulator. As the developer Council lodged the DA, and using its planning authority it could then consider and approve the development. 123 proposed to occupy the suite to run adventure flights, a venue for hire and an aviation museum. The AFL provided that if the plan of subdivision was registered by 30 September 2011 Council would grant a 30 year lease to 123. 123 commenced occupation of the land and subsequently erected a 3.5 million dollar hangar on the site.
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Minister’s Planning Principles and the Consolidation of SEPPs

On 2 December 2021 the Minister for Planning and Public Spaces released the Minister’s Planning Principles (‘Principles’) which have the following themes devoted to guiding future planning and development in New South Wales:

  1. Strategic and inclusive planning systems
  2. Well-designed places
  3. Natural environment and heritage preservation, conservation and management
  4. Resilience and hazards management
  5. Transport and infrastructure
  6. Safe, diverse and affordable housing
  7. Competitive and resilient economy
  8. Resources and renewable energy transitioning
  9. Protecting and supporting agricultural lands and opportunities for primary production

These Principles will apply through the existing statutory scheme under Part 3 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). Additionally, the Principles will align with the 11 new State Environmental Planning Policies (‘SEPPs’) created to consolidate and simplify NSW planning policies. From March 1 2022, the 45 SEPPs that currently exist will be consolidated into the following 11 SEPPs:

  • State Environmental Planning Policy (Biodiversity and Conservation) 2021;
  • State Environmental Planning Policy (Industry and Employment) 2021;

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BSCA v EPA: Litigation for climate change action

Dominating the political and media sphere is Australia’s commitment to net zero carbon emissions by 2050. This is unsurprising given the fast-approaching 2021 United Nations Climate Change Conference (COP26) and G20, where world leaders will gather and deliver their roadmap on climate action. Australia’s position on climate change has been met with mixed views as the federal government has yet to establish a net-zero target on a national level. Despite the federal government’s lack of progress, the case of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (BSCA v EPA) shows an unprecedented step forward by an Australian Court in holding a statutory body to account for action against climate change.

In the landmark decision of BSCA v EPA, the NSW Land and Environment Court (Court) made an order compelling the states lead environmental regulator in NSW, Environmental Protection Authority (EPA) to develop guidelines and policies to protect the environment from climate change.
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Mandating Covid-19 Vaccinations in the Workplace

With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.

The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine.

In mid-October 2021, the Supreme Court dismissed several legal challenges over the NSW Government’s Public Health Orders, and affirmed the power of the Health Minister to mandate Covid-19 vaccinations for workers in certain industries under the Public Health Act 2010.

Following the Supreme Court’s decisions, more and more employers have begun taking the initiative of introducing vaccination mandates within their own workplaces.  However, such a step is still fraught with legal risk particularly given that non-compliance with such mandates is liable to result in employee dismissals (and the claims that will inevitably follow).
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Updated Guidance for Councils – Flood Prone Land

On 14 July 2021, the NSW Department of Planning, Industry and Environment introduced updated guidance for councils in respect of flooding in land-use planning, to support better management of flood risk beyond the 1% annual exceedance probability (“AEP”), and to ensure best management practises in managing and mitigating severe to extreme flood events. The updated guidance and materials are:

  1. a new planning circular: Considering flooding in land use planning: guidance and statutory requirements (and revoking the existing planning circular PS 07-003);
  2. a new guideline: Considering Flooding in Land Use Planning (2021) (and revoking the Guideline on Development Controls on Low Flood Risk Areas);
  3. an amendment to clause 7A of Schedule 4 to the Environmental Planning and Assessment Regulation 2000. The changes will simplify the notation to advise of flood-related development controls up to the flood planning area (clause 7A(1)) or between the flood planning area and the PMF (clause 7A(2));
  4. two standard instrument local environmental plan (LEP) clauses which introduce flood related development controls (one mandatory, one optional);

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Application Modification

The recent NSW Court of Appeal case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 raises concerns as to the power to modify an existing development consent. The bench included Meagher, Leeming JJA and Chief Judge of the Land and Environment Court Preston CJ.

The case involved an application to modify an underground coal mine in the Hunter Valley. The Court found that the Land and Environment Court judge has erred in joining the objectors and ordered that the joining of the objectors be set aside.

Preston CJ, however, provided extensive consideration in his judgment as to the issue of whether there is power to amend an application to modify a development consent. His Honour concluded that there is no expressed or implied authority to permit the amendment of an application by developers or relevant consent authorities under the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). Conversely, his Honour emphasised that the absence of authority is contrasted to clause 55 of the Environmental Planning and Assessment Regulations 2000 (NSW) (‘EPA Regulations’) which expressly permits the amendment of an application to modify a development consent before the application has been determined.
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