Draft EP&A regulation

01 November 2010

As we’ve mentioned in a previous Member Alert, a draft new Environmental Planning and Assessment Regulation is currently on exhibition. Submissions close on November 5 (this week). The Urban Taskforce is presently completing a comprehensive submission that identifies key problems with draft regulation and also proposes positive measures that could be included.

Some key issues we have identified in our review are set out below.

There will be a harsh 21 day time limit for the requests and supply of further information. A consent authority will only be allowed to make such requests within 21 days of receiving an application. The restriction on applicants is likely to lead to “fishing expedition” requests for further information by consent authorities just before their 21 day deadline.

Additionally, an applicant will only have a non-negotiable period of 21 days to respond. In many instances, 21 days will not be reasonable allocation of time for the applicant.

These two changes alone will lead to more costs for applicants, less information for consent authorities and unnecessary rejection. Effectively, the new requirements are a prohibition on the exchange of information between a proponent and a consent authority after the 21 day periods have expired.

The Department of Planning is now also abandoning its previously announced reform agenda on concurrences. There will apparently be no action on July 2009 proposals to allow a consent authority to determine the DA, as if a non-responsive agency has no requirements.

Furthermore, stop-the-clock is now no longer going to be abolished as promised in 2008. Stop-the-clock will be retained, largely unchanged.

Although you wouldn’t know it from reading the Department’s fact sheet or the regulatory impact statement, planning (section 149) certificates are to be gutted, with a wide range of information essential for developers to be made optional (for example, whether a section 94 contributions plan is in force, and the name of the plan). Additionally, even when council elects to voluntarily provide the optional information, it will face limited liability (i.e. only liability for bad faith omissions or errors).

We will make our detailed submission available to members once it is finalised.

In the meantime, if you would like further information, the public exhibition documents are here.