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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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The Importance of Grampian conditions

The recent case of Visionary Investment Group Pty Ltd v Wollongong City Council [2019] discussed the flexibility of imposing a condition of consent when there is insufficient information provided with the development application.

The case involved a development application for a community title subdivision. During the duration of the proceedings, the applicant filed and produced a wide variety of amended plans/reports in support of its application.

One particular issue related to insufficient detail provided by the applicant in respect of ‘upstream’ impacts of off-site wastewater and water supply infrastructure which needed to be built in order to service the proposed subdivided lots. The design for the wastewater site was not put before the Court and Council argued that the development application could not be granted as these plans needed to be assessed. READ MORE

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Section 34 Conciliation Conferences – Requirement for Reasons

A recent development consented to by a Commissioner of the Land and Environment Court during a Court mandated section 34 conference has been set aside by the Court of Appeal due to the fact that the Commissioner failed to give proper and adequate reasons for their decision. The Commissioner further failed to give proper reasons with respect to her satisfaction as to the legal perquisites to their power to grant the consent.

Huajun Investments Pty Ltd filed a class 1 appeal against City of Canada Bay Council’s deemed refusal of their DA which sough to demolish pre-existing structures on the DA site and replace it with an 8 storey-residential flat building. READ MORE

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Is the need for a neutral or better outcome a requirement for success with respect to clause 4.6?

In a recent decision in the Land and Environment Court (LEC), the Court has given further clarification to the type of consideration that needs to be given to clause 4.6 of the standard instrument LEP.

The significant decision was given in the case Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where Preston CJ clarified the appropriate approach to the consideration of clause 4.6. The importance of this judgment is that a clause 4.6 submission does not require developments which do not comply with the applicable development standard to have a neutral or better environmental planning outcome than a development that does not. READ MORE

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Mandatory Local Planning Panels

The New South Wales Government on 10 August 2017 passed the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017 (Bill). The Bill was assented to by the Governor on 14 August 2017 and will have immediate effect. The most notable part of the Bill is that it will require all Council’s in the Greater Sydney and Wollongong regions to have a local planning panel. The intention of the Bill was described by Planning and Housing Minister, Anthony Roberts to bring “transparency, integrity and a high degree of probity” to the development application process. READ MORE

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Online Development Applications

The NSW Department of Planning and Environment (the Department) has announced plans to move the lodgement of Development Applications (DAs) online, saving significant time for applicants.

The average time taken to prepare and submit a traditional DA is up to ten (10) days. The Department’s proposed online system has the potential to reduce this time to thirty (30) minutes.

Whilst some Local Councils currently allow online submissions of DAs, the Department proposes a unified system which will be a “one stop shop” for development applications and complying development certificates. In the future the system will connect any type of application to be lodged to any local council within New South Wales. READ MORE