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Part 6 of the Environmental Planning and Assessment Act is Finally Coming into Effect (Hopefully)!

On 30 August 2019, the NSW government introduced the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW). With this, Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is likely to finally come into effect on 1 December 2019, bringing significant changes to the building approval and certification regimes in NSW.

Background

Part 6 of the EPA Act was inserted into the EPA Act as part of the major reform package introduced by the Environmental Planning and Assessment Amendment Act 2017 (NSW). With the exception of the sections relating to the Building Information Certificate, Part 6 did not immediately commence with most of the reform package. Instead, its commencement was delayed several times to enable industry to make the transition.

Introduced by the state government as a part of its response to the report on the building certification regime in NSW by former state treasury secretary Michael Lambert (the Lambert Report), Part 6 of the EPA consolidated all provisions relating to building certification – which was previously found at various parts of the EPA Act – into a one single part within the EPA Act. Further, Part 6 will make the following substantive changes:
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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.

In reply, the applicant argued that under the processes in Division 5.1 of the Environmental Planning and Assessment Act 1979 the Court has the ability to grant consent based on the fact they are able to give proper consideration and assessment of the ‘upstream impacts’. Noting this, the applicant stated that any consent granted could include conditions necessary to ensure that the div 5.1 processes were followed before commencing development.
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