Changes to the planning regulations

21 December 2010

In previous member alerts we advised that NSW’s Environmental Planning and Assessment Regulation was under review and that a full re-draft of the regulation had been exhibited. We expressed our concerns with the draft and provided the Government with a detailed submission.

Following receipt of our submission, the Department of Planning conceded that there are significant issues with their proposed re-draft of the whole regulation and that these matters cannot be resolved quickly. As a result, the full regulation has been deferred, and the Department of Planning is proceeding with a more limited set of changes.

Accordingly, yesterday, the government published the Environmental Planning and Assessment Further Amendment Regulation 2010. This makes a relatively small number of changes.  The full amending regulation is set out here.

A summary of some key changes is set out below.

Removal of the 1,000 square metre cap

We have consistently expressed concern about the effect of the 2006 and 2007 amendments to existing use rights. As a result of these changes commercial and industrial premises subject to existing use rights cannot enjoy a change of use under existing use provisions if the alterations:

  • involve anything more than minor alterations or additions;
  • involve an increase of more than 10 per cent in the floorspace;
  • involve the rebuilding of the premises;
  • involve a significant intensification of that existing use; or
  • relate to premises that have a floorspace of 1,000 square metres or more.

An amendment to the regulation, which takes effect on 25 February 2011, takes a small step in our direction. The above-mentioned 1,000 square metre cap on the exercise of existing use rights for commercial or light industrial premises will be removed.

Fees increased

Applications fees will increase generally by 9 per cent on 1 July 2011. We, of course, opposed this fee increase in our submission.

The maximum fee for a request for a Part 3A modification that involves a minor matter (such as a minor error, a misdescription or a miscalculation) is increasing from $750 to $850 (from 1 July). The fee for a modification requiring a minor environmental assessment increases from $750 to $5,000.  We are told that this latter change will “assist applicants”, because more matters that were previous regarded requiring major assessment will now be classed as minor environmental assessment.

Following representations from the Urban Taskforce, the Department is not proceeding with a proposed punitive fee regime for Part 3A modifications requiring major environmental assessment. Under the original proposal the fees for such a modification would have always been greater than a Part 3A application for the same matter that is not a modification. For example, if an approval originally authorised the construction of 1,000 dwellings, and a modification application sought the ability to build an additional 100 dwellings (perhaps based on a more efficient use of land than originally envisaged), the applicant would have been forced to pay:

  • a fee equal to 50 per cent of the original approval fee; AND
  • a fee equal to whatever it would have cost if the applicant had merely sought approval to build 100 homes and a standalone basis.

Were pleased to say that commonsense has prevailed. This proposal is not proceeding. Instead the Department has increased, from 1 July 2011, the minimum modification fee to $5,000 (from $2,000).

Furthermore, the issue of an on-line BASIX certificate will now be subject to a fee (from 25 February). For instance, single detached dwellings will be subject to a $50 fee, residential flat buildings will be subject to a $120 fee for the first three dwellings and then $20 for each dwelling thereafter.

Existing development control plans

Under the existing regulation old development controls plans (DCPs) were to sunset out of existence on 31 March 2011 five years after the new-look local environmental plan (LEP) template (the standard instrument) was published.

As most LEPs have not yet been converted to the new format, the regulation has been amended to clarify an existing development control plan will continue indefinitely (while the old LEP is still in force), even if it does not meet some specific requirements of the Act. This means, for example, that the requirement that there only be one DCP in force for a particular parcel of land will not be implemented in many areas (at least for some time).

From 1 January 2011, a DCP that is not inconsistent and able to operate in conjunction with a standard instrument LEP, may remain in place for six months after the making of the LEP. This is designed to allow standard instrument LEPs to be published, even when the council has not finalised the DCP. Whilst this may speed up the publication of modern LEPs, it also increases the odds that these LEPs will be frustrated by dated DCPs. There is a real risk that there will be little departmental supervision of the preparation of a new DCP, once a standard instrument LEP has been finalised and published – as the Department would have lost its main point of leverage with the council.

Fire engineer certification involving an alternative solution.

The existing regulation was drafted in such a way that from March 2011, all building works that involved an alternative fire solution under the Building Code of Australia would require a fire safety engineer to certify that the alternative solution complied with the Building Code of Australia. The regulation has now been amended so that this provision will only apply to:

  • health-care buildings (class 9a) with a floor area exceeding 2000 square metres;
  • any building with a fire compartment more than 2000 square metres; or
  • any building with a total floor area of more than 6000 square metres.

BASIX completion receipt

At the moment, an application for a BASIX Completion Certificate was to be made within two days of the issue of a final occupation certificate. From February 25, the application for a BASIX Completion Certificate must be made prior to the issue of the final occupation certificate.

Smoke alarms in campervans, caravans, holiday vans, park vans

From February 25, movable dwellings, where people sleep, will require the installation of smoke alarm.

Compliance cost notices

From 25 February the regulation will specify what must be included in a compliance cost notice: e.g. details of the development, name of the person to whom the notice is issued and amount required to be paid etc.

Furthermore the regulation will specify that costs or expenses relating to:

  • an investigation that lead to the giving of an order to which the notice relates; or
  • any costs or expenses relating to the preparation or serving of the notice,

cannot be included in the compliance cost notice.