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An Overhaul of the Taxation Scheme: Developments for Developers

In July 2023, the NSW parliament passed the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 (NSW), which introduces Housing and Productivity Contribution (HPC). HPC replaces the previous Special Infrastructure Contribution (SIC) scheme and applies a more consistent contribution framework over a much wider area, including the entire Local Government Areas located in:

  • the Greater Sydney region;
  • the Illawarra-Shoalhaven region;
  • the Lower Hunter region; and
  • the Central Coast region.

The HPC will apply from 1 October 2023, except in relation to land within the Western Sydney Growth Areas and Western Sydney Aerotropolis SIC areas (to transition to the HPC regime by 2026). [...]  READ MORE →

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How do I object to a Development Application?

Who can make an objection to a DA and what is in an objection?

When a development application (DA) is lodged on the NSW Planning Panel, nearby property owners and any concurrent authorities are notified, so that they are aware of the DA and have opportunities to make submissions. Council’s own policy, council’s development control plan, and the local environmental plan provide guidance as to who is notified of such a DA. The property owners within the vicinity of the proposed DA, and/or anyone who has a submission to make, may provide one of the following responses: [...]  READ MORE →

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State-wide Standard Conditions of Consent and Notices of Determination Now in Use

On 30 June 2023, the Department of Planning’s requirement for planning authorities to adopt standardised conditions of consent and notices of determination came into effect. This requirement affects all councils and planning authorities when they are granting development consents via the Planning Portal.

The Department has published a manual containing about 40 conditions of consent and made standard notices of determination templates for 11 types of determination, including standard approval subject to conditions of consent, deferred commencement consent, and refusal of consent. [...]  READ MORE →

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New employment zones are now in effect!

On 26 April 2023, five new employment zones and four supporting zones were introduced into 135 local environment plans (LEPs) across NSW.

The new zones were formally introduced via an amendment to the Standard Instrument (Local Environmental Plans) Order 2006 (SI LEP Order) on 1 December 2021 to repeal the Business () or Industrial (IN) zones. These changes were made in response to the NSW Productivity Commission’s White Paper on Rebooting the Economy, which recommended consolidating employment zones. [...]  READ MORE →

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Overview of the Greater Cities Commission

Established in 2016, the Greater Sydney Commission was initially formed under the (now repealed) Greater Sydney Commission Act 2015 (NSW), its purpose was to act as a central state government agency to assist local and state governments in the collective planning and development of the Greater Sydney Region.

Recent amendments under the Greater Cities Commission Act 2022

With the continuous growth of the population and demand for accessibility, the Greater Cities Commission Act 2022 (NSW) (Act) was introduced to expand the Greater Sydney Region to include three new cities. As such, there are now six cities managed by the new Greater Cities Commission (Commission) as follow:- [1] [...]  READ MORE →

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Interim Heritage Orders

Helm No 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406

Overview & Facts

The case of Helm No 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406 provides relevant considerations a Council may need to consider before issuing an interim heritage order (“IHO”).

The case was in relation to an IHO issued by the Minster in accordance with the Heritage Act 1977 (NSW) (“The Act”). The IHO was issued to the owners of 131 and 133 Holt Avenue, Cremorne (“the Properties”). According to section 26 of the Act, Council does not have to provide notice in its intention to place an IHO. A Council, however, must provide notice once the IHO has been taken into effect; in this instance, being when the Properties and their heritage status was published in the Government Gazette in compliance with section 28(1)(c) of the Act. [...]  READ MORE →

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Who is Responsible for Infrastructure in Flood Prone Land Downstream of Warragamba Dam?

Summary

The floods earlier this year have resulted in many questioning who is responsible for infrastructure being built on flood prone land, and how it can be stopped, given the resulting devastation to homes and business. The Environmental Planning and Assessment Act establishes the framework for provision of Environmental Planning Instruments (‘EPIs’) which set out how land can be used for development purposes by dividing land into different land use types, called ‘zones’ .  The EPI determines what type of developments can occur on different ‘zones’ within each of Councils Local Government Area’s. This includes provision for what can and cannot be built on flood prone land.  There are two different types of EPIs being Local Environmental Plans (‘LEPs’) and State Environment Planning Policies (‘SEPPs’). These, in conjunction with developers building on flood prone land and the unique constraints associated with Warragamba Dam, have contributed flooding in areas within the Hawkesbury Nepean catchments. [...]  READ MORE →

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Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Summary

The Land and Environment Court of New South Wales has delivered a recent judgment considering the interpretation of the definition of ‘gross floor area’ (GFA) as set out in the Standard Instrument – Principal Local Environmental Plan.

GFA calculations are one of the more complex aspects of the NSW planning system, however, with the growing body of case law, it is becoming increasingly clear as to what will be included or excluded from this calculation. The recent decision of Dixon SC in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass) has contributed to this body of case law, with the judgment clarifying the scope of item (g) in the definition of what is excluded from GFA calculation, being the space allocated to car parking and access to same. [...]  READ MORE →

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EPA v Riverina (Australia) [2015] NSWCCA 165

Case Background

By way of summons (“the Summons”) filed on 17 April 2014, Riverina (Australia) Pty Ltd (“Riverina”) was charged under the Environment Protection Authority (“EPA”) with an offence of polluting waters being a breach of section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the “POEO Act”). The particulars of the charge alleged that Riverina disposed of waste material through a storm water drainage system which flowed down a number of drainage lines and then discharged into a main body of water. Relevantly, the items forming the manner of contravention as set out in the Summons were separated by the words “and/or”. [...]  READ MORE →

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Case summary – EPA v Sydney Water Corporation [2020] NSWLEC 153

Summary

The case of EPA v Sydney Water Corporation [2020] NSWLEC 153 was heard in the LEC in the Class 5 jurisdiction before Pain J.

Proceedings in the Land and Environment Court’s (LEC) Class 5 jurisdiction typically involve summary criminal enforcement proceedings (initiated by government authorities prosecuting offences against planning or environmental laws).  According to the statistics published by the LEC, 32% of the prosecutions commenced in 2019 were initiated by the Environment Protection Authority or Office of Environment and Heritage. [...]  READ MORE →

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New Guidance Released for Preparing or Assessing Biodiversity Development Assessment Reports

The NSW Department of Planning and Environment has recently released a Biodiversity Development Assessment Report Template (‘the BDAR Template’) to assist accredited assessors in preparing  Biodiversity Development Assessment Reports (‘BDAR’) for proposed developments.

The BDAR Template has been developed in accordance with best practice and sets out the minimum requirements for a BDAR in accordance with the Biodiversity Assessment Method 2020 (‘the BAM 2020’). It is not compulsory for accredited assessors to use the BDAR Template. [...]  READ MORE →

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Consolidation of State Environmental Planning Policies

On 1 March 2022, the New South Wales government has repealed some 45 State Environmental Policies (SEPPs) and consolidated them into 11 new SEPPs. For the most parts, the provisions of the repealed SEPPs are simply transferred into the consolidated SEPPs.

The following table shows the result of the SEPP consolidation:-

Consolidated SEPP Repealed SEPP
State Environmental Planning Policy (Planning Systems) 2021 State Environmental Planning Policy (State and Regional Development) 2011;

State Environmental Planning Policy (Aboriginal Land) 2019; and

State Environmental Planning Policy (Concurrences and Consents) 2018.
State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017;

State Environmental Planning Policy (Koala Habitat Protection) 2020;

State Environmental Planning Policy (Koala Habitat Protection) 2021;

Murray Regional Environmental Plan No 2—Riverine Land;

State Environmental Planning Policy No 19—Bushland in Urban Areas;

State Environmental Planning Policy No 50—Canal Estate Development;

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011;

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997);

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment; and

Willandra Lakes Regional Environmental Plan No 1—World Heritage Property.
State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Coastal Management) 2018;

State Environmental Planning Policy No 33—Hazardous and Offensive Development; and

State Environmental Planning Policy No 55—Remediation of Land.
State Environmental Planning Policy (Transport and Infrastructure) 2021 State Environmental Planning Policy (Infrastructure) 2007;

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017;

State Environmental Planning Policy (Major Infrastructure Corridors) 2020; and

State Environmental Planning Policy (Three Ports) 2013.
State Environmental Planning Policy (Industry and Employment) 2021 State Environmental Planning Policy (Western Sydney Employment Area) 2009; and

State Environmental Planning Policy No 64—Advertising and Signage.
State Environmental Planning Policy (Resources and Energy) 2021 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007; and

Sydney Regional Environmental Plan No 9—Extractive Industry (No 2—1995).
State Environmental Planning Policy (Primary Production) 2021 State Environmental Planning Policy (Primary Production and Rural Development) 2019; and

Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas).
State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

Darling Harbour Development Plan No 1;

Sydney Regional Environmental Plan No 26—City West;

Sydney Regional Environmental Plan No 16—Walsh Bay;

Sydney Regional Environmental Plan No 33—Cooks Cove; and

State Environmental Planning Policy No 47—Moore Park Showground.
State Environmental Planning Policy (Precincts—Central River City) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006;

State Environmental Planning Policy (Kurnell Peninsula) 1989;

Sydney Regional Environmental Plan No 24—Homebush Bay Area; and

State Environmental Planning Policy (Urban Renewal) 2010.
State Environmental Planning Policy (Precincts—Western Parkland City) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006;

State Environmental Planning Policy (Western Sydney Aerotropolis) 2020;

State Environmental Planning Policy (Penrith Lakes Scheme) 1989;

Sydney Regional Environmental Plan No 30—St Marys; and

State Environmental Planning Policy (Western Sydney Parklands) 2009.
State Environmental Planning Policy (Precincts—Regional) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

State Environmental Planning Policy (Activation Precincts) 2020;

State Environmental Planning Policy (Kosciuszko National Park—Alpine Resorts) 2007; and

State Environmental Planning Policy (Gosford City Centre) 2018.

As at 1 March 2022 only three SEPPs had not been amended. These SEPPs are the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. [...]  READ MORE →