The long awaited review of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) has finally concluded, culminating with the publication of the Environmental Planning and Assessment Regulation 2021 (the 2021 Regulation) on 18 February 2022.
Following on from updates in 2018 to the parent-legislation of the Regulation, the Environmental Planning and Assessment Act 1979, the Regulation will adopt a new numbering system for all clauses. Unfortunately the Department of Planning and Environment is yet to release a comparative table of clauses, leaving consent authorities and practitioners to navigate the restructured and renumbered 2021 Regulation on their own.
Below is a brief overview key changes that consent authorities and practitioners should be aware of.
Key amendments
- Clause 41 of the 2000 Regulation confirmed the circumstances in which existing uses could be expanded, altered, rebuilt, changed and so on. However, this was restricted to changes that did not involve an increase of more than 10% in the floor space ratio of the premises. The 2021 Regulation replaces the reference to ‘floor space ratio’ to the standard instrument definition of ‘gross floor area’ in what has now become clause 163.
- Councils have not previously had the power to reject a modification application. The 2021 Regulation has inserted clause 114 to confirm that consent authorities can reject a modification application and to set the circumstances in which they can do so.
- Schedule 1 of the 2000 Regulation detailed the information that was required to be included in a development application. These requirements have now been removed from the 2021 Regulation and transferred to the NSW Planning Portal.
- Clause 118(5) of the 2021 Regulation contains requirements for modified development consents to comply with any requirements specified by the Planning Secretary. It is anticipated that such requirements will relate to the form and content of the modified development consent to ensure consistency.
- The “stop the clock” provisions are now contained within Division 4 of the 2021 Regulations and a number of important changes have been made in relation to the calculation of deemed refusal periods.
- Part 6 of the 2021 Regulation contains provisions relating to complying development certificates (CDC), and includes new requirements in relation to the information required for CDC applications.
- Schedule 3 of the 2021 Regulation contains new categories of designated development to capture emerging technologies, such as battery storage facilities, container reconditioning works, contaminated groundwater treatment works, desalination plants, dairies and many more.
Schedule 6 of the 2021 Regulation contains savings, transitional and other provisions and confirms that the 2000 Regulation continues to apply to development applications and applications for complying development certificates that were made but not finally determined before 1 March 2022.
However, Schedule 6 is silent on whether modification applications that were made but not finally determined before 1 March 2022 are saved from the application of the 2021 Regulation.
The changes introduced by the 2021 Regulation are significant and we will continue to monitor how they impact new applications, and how they are considered in the Land and Environment Court.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
