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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. [...]  READ MORE →

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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. [...]  READ MORE →

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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: [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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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);
  5. a SEPP amendment to replace councils existing flood planning clause with the new mandatory standard instrument clause; and
  6. a revised local planning direction regarding flooding issued under section 9.1 of the Environmental Planning and Assessment Act 1979.

Section 10.7 Planning Certificates

Under Schedule 4: There are new requirements in section 10.7 planning certificates for land affected by flood-related development controls. [...]  READ MORE →

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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. [...]  READ MORE →

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Laws for the Paws

Introduction

The COVID-19 pandemic has changed what we used to consider a “normal” working environment as working from home is now the new status quo. Fortunately, this has allowed many of us to bond with our pets but what happens when our beloved pets get themselves into trouble? And the next question that follows, to what extent can local council officers enter our property to seize our pets?

Powers to entry property under the CAA Ct

In New South Wales, the Companion Animals Act 1998 (NSW) confers large powers upon local councils to regulate the effective and responsible care and management of our little furry companions. [...]  READ MORE →

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Impact of Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 on Local Governments

In December 2020, the Commonwealth parliament passed the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (Foreign Relations Act), which will impose new restrictions on local governments’ autonomy in making certain types of arrangements with foreign entities.

The Foreign Relations Act requires State and Territory statutory bodies, including local governments, to notify the responsible Minister (which is currently the Foreign Minister) before entering into arrangements with foreign public entities. The type of “arrangement” that will trigger compliance with this requirement are extremely wide and include:- any written arrangement; agreement; contracts; understandings; or undertakings, whether legally binding or not. The types of foreign entities with whom arrangements are entered into that will trigger the notification requirement are also very wide, including:- foreign countries; foreign local governments; and certain types of universities. [...]  READ MORE →

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New Practice Note Issued in NSW on Voluntary Planning Agreements

On 12 February 2021, the Planning Secretary issued a new Planning Agreement Practice Note (VPA Practice Note) under clause 25B(2) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations), replacing the Development Contributions – Practice Note – Planning Agreements (Former VPA Practice Note) issued on 19 July 2005. This clause provides guidance on the making, administration and negotiation of VPAs under section 7.4 of the Environmental Planning and Assessment Act (EPA Act). On the same day, the Environmental Planning and Assessment Amendment (Development Contributions) Regulations 2021 (Amendment Regulations) made numerous amendments to the EPA Regulations. [...]  READ MORE →

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Home owners should not underestimate the importance of Council approval!

It’s likely crossed most home owners’ minds:  it might be nice to replace the front fence, or it’s time to upgrade to a bigger backyard garden shed. But before home owners get too excited, it’s crucial that any plans for any kind of development are submitted to the local Council. Omitting this step could result in not only a potential fine and conviction, but the demolition of that dream development.

Why do Home Owners need Council approval?

Home owners sitting on their deck admiring the view should be thankful that there are no high rise developments in their line of sight and for that they can thank their Council’s Local Environment Plan. Each Council’s Local Environment Plan sets out what each parcel of land in a suburb and community is zoned as and therefore what can or cannot be built there. So in a residential area, it may be prohibited for buildings taller than two stories to be built, or for a rubbish dump to be next to a child’s primary school. But these same regulations also limit what a home owner can and cannot do with their own land, from what kinds of home businesses they can run, to what kind of additions, renovations and developments can be constructed as well as what kinds of development require consent. [...]  READ MORE →

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Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

The above case in the Land and Environment Court reminds us of the crucial role that investigators of a Public Authority, such as Council Officers, play in upholding the foundational principles and goals of the Environmental Planning and Assessment Act 1979. The carrying out of development without consent or not in accordance with the consent undermines the objects of the Act, and Council Officers are usually the ones who bring this conduct to the attention of the Court.

 “People need to be aware that the offence of carrying out development not in accordance with development consent is a crime, that offenders will be prosecuted and that the Court will impose significant penalties on offenders”  Chief Justice Preston [...]  READ MORE →