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.
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.
Particular modification applications do not need to be referred to concurrent authorities or approval bodies, unless the proposed changes are in respect to conditions or general terms imposed by that concurrence authority or approval body.
The provisions for calculating assessment periods and ‘stop the clock’ rules have been restructured and clarified. Major changes include:-
- The assessment period now commences on the day on which the DA is lodged;
- The assessment period now includes the two days after the date on which the consent authority refers or notifies the concurrence authority or approval body;
- The assessment period can be reset if an application to amend a DA is approved by the consent authority and the consent authority considers the amendment not to be minor;
- An information request issued by the consent authority must specify the number of days that have elapsed in the assessment period;
Regulation 2021 also now distinguishes between a notice of determination issued to an application and a notice issued to any other party. From a practical perspective, instead of the full list of information that was required to be sent to all parties under Regulation 2000, the consent authority will now only need to send a letter to any party other than the applicant.
Complying Development Certificates
Regulation 2021 requires that an application for a complying development certificate (CDC) 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 EP&A Act and the Regulation.
Notable requirements for a new CDC application include:-
- Details on site configuration and building envelope of the proposed building(s) or works;
- Detailed engineering plans for telecommunications or electricity works;
- A site plan that is drawn to scale and shows the location of any registered easements on the land;
- The maximum site coverage of the land;
Importantly, Regulation 2021 requires a detailed list of reports, studies, plans and documentation relied upon to determine the CDC application to be listed on the CDC, with sufficient guidance on how and where the documents can be accessed.
A planning certificate is a document issued by a council which provides information about planning and other development controls that apply to a specific parcel of land. Under the EP&A Act, councils (as the relevant consent authority) are required to include matters prescribed in Regulation 2000 in planning certificates.
The matters prescribed in Regulation 2000 continue to apply until the end of 31 September 2022. From 1 October 2022, the matters prescribed in Regulation 2021 will apply and the following additional matters will need to be included on planning certificates:-
- Draft environmental planning instruments and draft development control plans which have been subject to community consultation or public exhibition. However, these do not need to be included on planning certificates if they have not been made within three years from the date they were last on public exhibition;
- Whether any additional permitted uses apply to the land under the relevant Local Environmental Plan;
- Information on all applicable State Environmental Planning Policies that zone land;
- Whether the land is subject to a variation that affects the ability to carry out complying development;
- Key land use classifications that affect the ability to undertake exempt development;
- Whether any of the land is affected by an adopted policy that restricts the development of the land based on hazard restrictions;
- Whether the land is in a special contributions area and to also include if any draft contributions plans apply to the land.
Regulation 2021 has also removed a number of requirements which councils had to provide information on under Regulation 2000.
For more information on how the operation of the EP&A Regulation 2021 may apply please contact the Matthews Folbigg Local Government team on 02 9635 7966 to speak with one of our local government lawyers.