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Advice | Transactions | Disputes
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NSW Planning Law Round Up
Craig Tidemann | Partner
Swissotel | 11 June 2015
Update on Reforms to the NSW Planning System

Outline
• The reform package (June 2011 to October 2013)
– Review of the planning system
– Reforms in strategic planning
– White Paper, Exposure Bills and Feedback Summary
– Planning Bills: changes in October/November 2013
• What happened (27 November 2013 to 19 March 2014)
• What’s happened since (2014/2015)
– Penalties, enforcement, ePlanning (19 November 2014)
– State significant development (21 November 2014)
– ‘A Plan for Growing Sydney’ (14 December 2014)
(Priority Precincts, Subregions, WSEA, Growth Centres, Greater Sydney Commission)
– Ministerial Local Planning Direction (14 January 2015)
– Potential changes in 2015/2016
• Opportunities for developers

Review of the Planning System
• Election
– ‘repeal of Part 3A’ (Bill introduced in June 2011)
– ‘returning powers to local communities’
• Review into the planning system
announced: July 2011
• Independent review panel appointed
• Issues Paper: December 2011
• Review of international best practice (Stein):
May 2012
• Review Paper: May 2012
• Green Paper: July 2012

Green Paper - turned planning upside down
• Early community involvement in strategic planning
• Policies made upfront to guide development
• Planning and delivering infrastructure to support growth
• Exhibited until 14 September 2012 - 4100 submissions
• Feedback Summary released on 21 December 2012 -
overview of main issues raised in consultation

Reforms in Strategic Planning
• Green Paper was coupled with a transformation in strategic planning
• Key State Policies in December 2012:
– ‘State Infrastructure Strategy’
– ‘Long Term Transport Masterplan’
– ‘Regional Action Plans’ informed by NSW 2021
• These were to be incorporated into the new system as either NSW Planning Policies
(NPPs) or to inform Regional Growth Plans (RGPs) or Subregional Development Plans
(SRDPs)
• Now set to inform Subregional Plans and LEPs under ‘A Plan for Growing Sydney’

Reforms in Strategic Planning
• Draft ‘Metropolitan Strategy for Sydney to 2031’ exhibited until 28 June 2013
(coinciding with the White Paper)
• Draft ‘Lower Hunter Strategy’ Discussion paper (exhibited until 31 May 2013)
• Draft ‘Illawarra Strategy’ Discussion paper (exhibited until 11 November 2013)

White Paper and Exposure Bills
• Exhibited until 28 June 2013 - 4926 submissions
• Set out how the new strategic plans were to be implemented
• Sought to shift focus from restriction and control to enabling
development
• Accompanied by exposure draft Bills
(changes to Bills announced in 19 September
2013 following submissions)

Reforms to the NSW Planning System
• White Paper set out reform in five areas:
1. Delivery culture - changing the planning
culture
2. Community participation
3. Introducing a Strategic planning framework
4. Development assessment
5. Provision of infrastructure
• Mirror the Green Paper. Reorganised to
emphasise priority
• Changes proposed to Building Regulation and
Certification
• Biggest change to NSW Planning System in 30
years

Planning Bills
• Feedback Report released on 22 October 2013
– Addressed key issues raised by stakeholders
– Explained changes to the Bills made in response to
community feedback
• Planning Bill 2013 and Planning Administration Bill 2013
(Planning Bills) introduced into Parliament on 22 October
2013

Planning Bills - 2013
• Passed Legislative Assembly without amendment
• Introduced into the Legislative Council on 30 October 2013
– Sustained debate
– More than 80 amendments sought
– Passed on 27 November 2013 with 51 amendments
• Amendments included the removal of ‘code assessment
development’ as well as many other potential reforms and benefits
• On 28 November 2013, the Government delayed consideration of
these amendments for 3 months until Parliament resumed

Planning Bills - 2014
• February/March 2014:
– (12th) ‘amendments moved in the Legislative Council...effectively gutted our proposed
planning legislation’
– (12th) ‘considering options on the best means to implement the reforms’
– (28th) ‘the Planning Bill remains in the Parliament and the Government continues to
work...to achieve planning reforms...’
– (1st) ‘introduce reforms using other mechanisms’
• 19 March 2014 - remained on the Legislative Assembly Business Papers
• 23 April 2014 - new Planning Minister - Pru Goward
• Political discussion around ‘Reforms to the Planning System’ were reframed
around the delivery of infrastructure / housing targets (affordability) being met
through land release and increased density around existing and planned
transport nodes
• The Planning Bills lapsed when the session of Parliament ended on 8
September 2014
• The Planning Bills have not been restored in a later session of Parliament

EP&A Act Amendments - October 2014
• Environmental Planning and Assessment Amendment Bill 2014
introduced into the NSW Parliament to amend the Environmental
Planning and Assessment Act 1979 (EP&A Act)
– New offences and higher penalties
– New enforcement powers for the Land & Environment Court (LEC) and
Councils
– New ePlanning system
• Amendments passed on 19 November 2014, but are yet to come into
operation
• All amendments were proposed in one form or another as part of the
previous 3 year process to reform the NSW planning system - some go
further

EP&A Act Amendments - Offences
• New offences under the EP&A Act include:
– Section 125(3A): where a person aids and abets or conspires to commit an offence
under the EP&A Act
– Section 148B: that a person must not provide information in connection with a
planning matter that they know, or ought reasonably to know, is false or misleading in
a material particular
• These offences apply to applicants and any person engaged by an
applicant (eg. a planning or environmental consultant engaged to
prepare a DA or an EIS)

EP&A Act Amendments - Penalties
• Provide for a significant increase in penalties for planning offences
(current maximum of $1.1 million)
• Are split into three tiers based on the seriousness of the offence (similar
to NSW environmental laws)
Tier Offence
Maximum Penalty
Corporation / Individual
Tier 1 Offences under s125(1) of the EP&A Act that are
committed intentionally and:
• cause, or are likely to cause, significant harm to
the environment; or
• cause the death of, or serious injury or illness
to, a person
$5 million / $1 million
Tier 2 Offences under s125(1) of the EP&A Act that are
not Tier 1 or Tier 3 offences (eg. breach of consent)
$2 million / $500,000
Tier 3 Procedural or administrative offences, such as a
'certificate-related offence' (eg. occupation
certificate)
$1 million / $250,000

EP&A Act Amendments - Enforcement
• Councils provided with greater powers of investigation to:
– Enter non-residential premises without first giving notice to the owner or occupier
– Require information or records before entering premises and seize items that officers
suspect are connected with an offence
– Prosecute offences within two years of an offence being brought to their attention,
rather than within two years of the offence being committed
• Similar to EPA authorised officers
• LEC provided with greater powers to:
– Require offenders to pay additional money, on top of any penalty imposed (eg. to
cancel out any monetary benefit they received from committing an offence)
– Order the offender to be named and shamed at their own expense (eg. by taking out
newspaper advertisements at their own cost)
– Force offenders who damage the environment to rectify the damage they caused at
their own expense
• The changes aim to prevent the writing-off of fines for planning offences,
or profiting from a breach of planning laws

EP&A Act Amendments - ePlanning
• Amendments to the EP&A Act provide for:
– The creation of NSW Planning Portal (Portal)
– Online delivery of planning services and information
– The creation of a NSW Planning Database
• A consent is to become effective and operate from the date the
determination is registered on the Portal

EP&A Act Amendments - ePlanning
• The PlanningHub was released in March 2015. It contains a range of
ePlanning tools and information, including:
– Application Tracking
– BASIX
– Electronic Housing Code - enables prompt assessment of whether a
development is exempt or complying development
– Interactive Buildings - helps a person to understand and interpret
development standards for exempt development
– Local Insights - a map which provides a range of statistics, population
projections and locations of DAs
– Planning Viewer (Beta version) - provides a summary of planning rules that
apply to individual parcels of land
• http://hub.planning.nsw.gov.au/

Proposed SSD Amendments - November 2014
• Proposed amendments to the processing of State Significant
Development (SSD), including:
– Introducing clear timeframes for the Planning Assessment Commission
(PAC) and other Government assessment processes and accountability for
meeting those timeframes
– Establishing a whole-of-government approach to assessing SSD to make
sure that agencies responsible provide timely advice and feedback
– Setting up a panel of independent experts who will advise the NSW
Government and the PAC on technical issues
– Giving clear guidance to the PAC on government policy
– Engaging better with communities affected by SSD by providing clear
information and more opportunities for community consultation
– Appointing additional compliance officers to ensure compliance
• Aims to reduce the average time taken to process SSD by up to 170
days, while providing more certainty to communities and business
• No Bill has been introduced at this stage

‘A Plan for Growing Sydney’ - December 2014
• Released on 14 December 2014 - 21 months after the Draft ‘Metropolitan Strategy for
Sydney to 2031’ (Draft)
• Guides land use planning decisions for the next 20 years in the metropolitan area
• Supersedes ‘Metropolitan Plan for Sydney to 2036’
• Sets out four main goals:
1. A competitive economy with world-class service and transport
2. A city of housing choice with homes that meet our needs and
lifestyles
3. A great place to live with strong, healthy and well connected
communities
4. A sustainable and resilient city that protects the natural
environment and has a balanced approach to the use of land and
resources
• Each goal is broken up into directions specifying actions. The
plan largely focuses on the first goal (via ‘Strategic Centres’
and ‘Growth Areas’ – especially in Western Sydney)

‘A Plan for Growing Sydney’

‘A Plan for Growing Sydney’ - Key aspects
• Contemplates greater growth than the Draft, with increases to the:
– Metropolitan housing target for 2031 to a minimum of 664,000 (21% increase from the Draft)
– Job creation target up to 689,000 new jobs (10% increase from the Draft)
• Greater focus on Western Sydney and Parramatta, which is to be a 2nd CBD
• Incorporates Badgerys Creek Airport (for the 1st time)
• Extends the ‘Global Economic Corridor’ to Parramatta, Norwest and Sydney Olympic
Park
• Housing is to be primarily provided through ‘Priority Precincts’ (formerly Urban Activation
Precincts) and other UrbanGrowth NSW programs
• Greenfields housing supply is largely confined to the North West and South West Growth
Centres
• Urban renewal and housing is planned along transport corridors - such as the North-West
Rail Link corridor, the Parramatta Road corridor, the Anzac Parade corridor and the
Bankstown to Sydenham corridor, and within the ‘Priority Precincts’
• Transport initiatives include the extension of both the North and South West Rail Links,
the Western Sydney Rail Upgrade, the Outer Sydney Orbital (M9), the WestConnex and
NorthConnex Motorways, the Western Harbour Tunnel, the Beaches Link and the
Western Sydney Freight Line

‘A Plan for Growing Sydney’ - GSC
• Provides for the creation of a new independent body - the Greater Sydney
Commission (GSC) (yet to be created)
• The Government is currently working with Councils and stakeholders on how
the GSC can best work with them and the community
• Enabling legislation due to be finalised in mid-2015
• The powers, budget and role of the GSC remain unclear
• It is anticipated that as an independent body, the GSC's Board will comprise
both State agency and local government representatives and the Chair of the
Board will report directly to the Minister for Planning
• GSC is to be responsible for the delivery of the Plan, including:
– Coordinating and driving delivery of actions outlined in the Plan
– Working in partnership with local councils, the community and other stakeholders to
assist in identifying strategic locations for housing, employment, associated services
and green space
– Driving the consolidation of local government areas within six subregions

‘A Plan for Growing Sydney’ - Subregions
• Identifies six new subregions for Sydney
• Government has set aside 12 months to work
with local Councils in each subregion to
develop Subregional Plans which are to
contain jobs and housing targets for each
region (anticipated to take longer)
• Subregional Plans are to:
– Provide the link between the Plan and detailed
planning controls applying to local areas
– Influence the delivery of housing supply
– Inform decision making for infrastructure
planning
– Provide guidance on planning issues of a
subregional nature

‘A Plan for Growing Sydney’ - Priority Precincts
• Urban Activation Precincts are renamed ‘Priority Precincts’ with the release
of the Plan
• Priority Precincts are areas identified as having social, economic or
environmental significance for the community and are capable of supporting
significant redevelopment and growth
• Priority Precincts are designed to revitalise and stimulate growth in existing
areas by:
– Rezoning precincts to allow for increased development (by way of SEPPs)
– Amending height of buildings, FSR requirements, density and heritage maps in
precinct areas
– Providing additional housing and employment
– Improving local infrastructure, including parks and community facilities
• Priority Precincts present an opportunity across a wide range of sectors,
including housing, retail and commercial as well as retirement living,
registered and sporting clubs, community centres and recreation

‘A Plan for Growing Sydney’ - Priority Precincts
• Location and status of the current 11 Priority Precincts are:
• Priority Precincts in Randwick, Anzac Parade South and Mascot Station are
on hold, due to community and Council opposition and consideration of the
WestConnex

‘A Plan for Growing Sydney’ - WSEA
• The Western Sydney Employment Area (WSEA) is about 15,000 ha of land set
aside for commercial/industrial purposes at the intersection of the M4 / M7
Motorways
• The WSEA is to enable Western Sydney to meet the demand for new jobs
• The Plan identifies the WSEA as the single largest new employment space in
the Metropolitan Area
• The WSEA is divided into 11 separate precincts and is expected to deliver more
than 36,000 industrial jobs and 21,000 office jobs over the next 30 years and up
to 212,000 new jobs when the area is fully developed
• Originally, in August 2009, 2,200 ha was set aside for the WSEA with the
commencement of the State Environmental Planning Policy (Western Sydney
Employment Area) 2009 (WSEA SEPP)

‘A Plan for Growing Sydney’ - WSEA
• The Broader WSEA draft Structure Plan was released in June 2013. The
Structure Plan is to inform future rezoning, staging of land releases, land use and
the provision of infrastructure
• With regard to the Badgerys Creek Airport announcement in April 2014:
– The WSEA SEPP was amended in December 2014 to dedicate an additional 4,537
ha of new employment lands to the WSEA
– The draft Structure Plan is being revised and is anticipated to be completed by the
end of 2015

‘A Plan for Growing Sydney’ - Growth Centres
• The Sydney Growth Centres are two regions of largely undeveloped land identified in
Sydney's North West and South West of about 27,000 ha divided into 34 Precincts
• The Growth Centres contains enough land to develop more than 180,000 homes to
accommodate 500,000 people over the next 30 years
• Since 2005, 12 Precincts have been rezoned and a number of other Precincts are
undergoing Precinct Planning. Each precinct is rezoned by the State Environmental
Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP)

‘A Plan for Growing Sydney’ - Growth Centres
• On 15 August 2014, the Growth Centres SEPP was amended to encourage
diverse and affordable housing options the Growth Centres by standardising:
– Approval pathways
– Minimum lot sizes for different housing types
– Housing types
– Controls for subdivision and design
• The changes provide developers with flexibility in delivering smaller homes on
smaller lots, by reducing the need to construct homes prior to subdivision for lots
as small as 250m2 (or down to 225m2 in some locations)
• The changes also allow minimum lot sizes of 125m2 in higher density areas close
to transport and town centres (subject to certain dwelling designs)
• An additional 2,500 small lots are now able to be developed in the Growth
Centres

‘A Plan for Growing Sydney’ - Implementation
• On 14 January 2015, the Minister issued a new local planning direction to metropolitan
councils pursuant to section 117 of the EP&A Act to ensure implementation of the Plan
• The direction applies whenever a relevant planning authority is preparing a new planning
proposal and requires that the planning proposal be consistent with the new Plan
• This framework represents a fundamental change (proposed in the planning reforms) to
the former system in which the ‘Metropolitan Plan for Sydney 2036’ did not need to be
implemented in planning controls
• More detailed priorities are to be prepared for each of the 6 sub-regions to implement the
Plan in conjunction with the GSC
• At the local level, the Plans actions will be implemented via existing LEPs and new
Community Strategic plans prepared by local councils and monitored by the GSC
• The Plan is intended to work in conjunction with the ‘Long Term Transport Masterplan’,
‘Rebuilding NSW - State Infrastructure Strategy’ and other recent strategic plans

2015 Development Assessment Report Card
• On 4 June 2015, the PCA released their 3rd Development Assessment Report Card
(Report)
• The Report provided that:
– NSW is ranked 7th out of 8 jurisdictions in housing affordability
– (Even with record housing approval levels) NSW is on track to have a housing
deficit of 190,000 dwellings by 2031
– Partly linked poor housing affordability to the abandonment of wholesale
planning reform
• Other problems identified in the Report included:
– Complexity of the planning system
– Council numbers and politics
– Excessive time delays in assessments
• Concluded that housing affordability will worsen without substantive planning reform

Repeal of SEPPs – June 2015
• On 11 June 2015, the draft State Environmental Planning Policy (Integration
and Repeal) 2015 (Draft SEPP) was released by the Department
• The Draft SEPP seeks to:
– Repeal 11 SEPPs which contain controls that have been superseded by
regional strategies, LEPs and other SEPPs
– Transfer controls in 5 SEPPs to the relevant LEP
– Make a minor amendment to one SEPP
• Planning controls in these SEPPs have either been implemented elsewhere in
the planning system, or will be transferred to the relevant LEP
• Review is aimed at simplifying and improving Planning System
• Review reflects priority action in the NSW 2021 Plan for a clear and transparent
planning system

Potential changes in 2015/2016
• No significant reform announcements ahead of the 28 March 2015 election
• 2 April 2015 - new Planning Minister - Rob Stokes
• Future change is likely to be guided by the recent planning reform agenda
• Infer (at least in the short term) that reform is to be introduced via amendments
to the EP&A Act, environmental planning instruments and strategic plans:
– Amendments to SSD
– Commencement of new penalties, enforcement and ePlanning (Planning Portal)
– Greater Sydney Commission Bill
– Sub-regional Plans (12 months ambitious – in conjunction with GSC)
– Community Strategic Plans
– New Priority Precincts (only 8 of the current 11 have been made + others)
– Structure Plan for the WSEA
– New amendments to the EP&A Act and related instruments and plans – informed by
the planning reforms
• Application of code assessment development (or other fast-tracked approvals)
to Priority Precincts and/or Growth Centres?

Opportunities for Developers?
• Priority Precincts (primary mechanism to deliver more homes) – focus on housing
delivery (664,000 new dwellings by 2031) and associated development
• Growth Centres - look to the West
• Corridors - urban renewal and housing purposes
• WSEA - commercial / industrial purposes
• Sites next to job rich areas (key criteria for identifying site with potential for urban
renewal are ones that are near a local centre, transport corridor or public transport)
• Infrastructure - both development and acquisition
• Surplus government land to be released for housing, which is likely to be driven by
UrbanGrowth NSW and released through government processes
• Be proactive in assessing any impact proposed changes to the planning system could
have on your sites, operations, planned development, ongoing land use or
acquisitions:
– be mindful of changes in strategic planning
– engage in community consultation to preserve or enhance your interests particularly at the
subregional level (ensure you are involved)

NSW Planning Law Round Up
Craig Tidemann | Partner
w +61 2 8248 5800
e ctidemann@tglaw.com.au
Craig Tidemann
@craig_tidemann
This Presentation is produced by Thomson Geer. It is intended to provide general information in summary form on legal topics, current at the time of publication only. The contents is not legal
advice and is not to be relied upon as such. Formal legal advice should be sought in particular matters. Liability limited by a scheme approved under Professional Standards Legislation.
Update on Reforms to the NSW Planning System

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