CHANGES TO THE NSW PLANNING

LEGISLATION-The Brave New World

CHANGES TO THE NSW PLANNING

LEGISLATION-The Brave New World

GREG WOODHAMSEnvironmental Services Director

Willoughby City Council

GREG WOODHAMSEnvironmental Services Director

Willoughby City Council

THE MAJOR CHANGESTHE MAJOR CHANGES

• New approval bodies

- Planning Assessment Commission instead of Minister for State Significant Projects.

- Joint Regional Planning Panel, residential, mixed use and commercial/retail over $10m and major Council DAs, Crown development, ecotourism or private infrastructure over $5m.

- Planning Arbitrators (applicant can request review of Council decisions or if over 50 days).

• Objector requests for review of Council decisions (over 25% variation of standards)

Council may appoint IHAPs. Minister may direct a council to operate an IHAP.

• More Council powers to enforce unauthorised building work and to issue fines. • New exempt and complying development:

- Single dwellings; 2 storey dwellings - No notification - Local variations

• Key community infrastructure contributions – stricter tests.

Functions

Independent advice to Minister on DAs, Environmental Planning Instruments (EPIs) and other planning matters

Part 3A applications delegated by Minister if a conflict of interest or in Ministers electorate

Determine DAs where no JRPP

Review body for JRPP decisions & third party reviews

Membership

8 permanent members plus Chair

Minister can also appoint casual members

PLANNING ASSESSMENT COMMISSION (PAC)PLANNING ASSESSMENT COMMISSION (PAC)

Functions

Advise Minister on DAs, LEPs and planning matters

Replaces Council as consent authority for matters over $10m, Crown DAs , Council DAs or major infrastructure

Review body for Council decisions not covered by Planning Arbitrators and third party objector reviews

Guidelines to Detail Procedures and Functions

Membership

5 members (3 Minister appointed, 2 Council nominees)

3 year appointment

JOINT REGIONAL PLANNING PANELS (JRPP)JOINT REGIONAL PLANNING PANELS (JRPP)

Functions

Determination and review of “minor development” (<$1 million) if requested by applicant

Informal decision review process (lawyer-free) if an application is refused, delayed(>50 days) or if conditions imposed that applicant opposes

Guidelines to detail procedures and functions

Membership

Director General administers list of Minister-endorsed candidates

Appointed as required

PLANNING ARBITRATORS (PA)PLANNING ARBITRATORS (PA)

Key Community Infrastructure

Local Roads

Local Bus infrastructure

Local Parks

Local Sporting, recreational, cultural, civic & social services facilities

Local Drainage and stormwater management works

Land for any above (except land for riparian corridors)

District infrastructure for above but only in direct connection with development

PLUS –any “additional community infrastructure” (needs Ministerial approval)

DEVELOPMENT CONTRIBUTIONSDEVELOPMENT CONTRIBUTIONS

CriticalInfrastructure

NEW PLANNING LEGISLATIONNEW PLANNING LEGISLATION

DO IT

COUNCIL / CERTIFIER

Yes

Yes

Yes

YesYes

Council DA

YesCheck CD Code

Check ED Code

No

No

Council DA

JRPP

Minister (no appeal)

PAC

LEC if no

public hearing

LEC

LEC

LECPA

It is exempt

development?

Is it complying

Development?

Is it Local development/

Planning arbitrator matter?

Is it part 3A?

Is it JRPP?

Appeal

Objector Appeal (Designated)

Appeal

Appeal

Objector review

Applicant review

Appeal

Review

If Council agrees to applicant appeal

Objector review

JRPP

PAC

Applicant Appeal unless public hearing

REVIEWABLE DETERMINATIONS / APPEALSREVIEWABLE DETERMINATIONS / APPEALS

CouncilCouncil

(Note: Once a matter has been reviewed it cannot be referred to another reviewing body for further review. Council is not designated as a “Reviewing body”)

(Note: Once a matter has been reviewed it cannot be referred to another reviewing body for further review. Council is not designated as a “Reviewing body”)

PAC(if not JRPP)

PAC(if not JRPP)

CouncilCouncil

JRPPJRPP

Planning Arbitrator Review

Planning Arbitrator Review

Council ReviewCouncil Review

Public HearingPublic Hearing

No Public HearingNo Public Hearing

CouncilCouncil

JRPPJRPP PACPAC

JRPPJRPP

DA

DA

DA

DA

DA

DA

No AppealRight

No AppealRight

AppealAppeal

AppealAppeal

AppealAppeal

AppealAppeal

Applicant

Objector

Review

Objector

Review

PLANNING ARBITRATOR (PA) PLANNING ARBITRATOR (PA)

Neighbour Notification posted includes:

• Standard letters• A4 plans• Grounds for review

• PA contact•details

Council Determination:Deemed refusal

Condition of Development

Consent or S96Deferred

CommencementRefusal (non

compliance with Act or Regs)

PA prepares a Report and notice of determination for:• Person who applied for Review • Objectors• Council

Neighbour Submission period closes. Any late Submissions at

the discretion of PA.

NeighbourSubmissions

are forwarded

to PA

Applicant may if dissatisfied lodge application to L&E

Court within 3 months of notice

S.97(6).

Council contacts Dir. Gen. DOP. (7 days) Arbitrators are nominated one or two are appointed• Council is notified of PA appointment + contact details

Council Determination:

• Deemed refusal• Condition of Development Consent or S96• Deferred Commencement• Refusal

Applicant lodges Review Application.(28 days)• Fees paid• Plans• Grounds for Review• Acknowledgement

If Council agrees Appeal to L&E Court S.97(5)

(Then no review)

Applicant for Review advised of details of appointment of PA

Council contacts PA:• Letter of engagement• Documentation required• Indemnity

Council provides PA with:• Letter of key facts/issues• Copy of file report• LEP/DCP• Plans

Councils Admin Section:

• Confirm date, time and location for hearing• Inform applicant and objectors• Book meeting room if required• Where site meeting, make necessary arrangements

Council records Notice of

Determination

PA issues Notice ofDetermination within21(?), 28(?) days of

lodgement

Where PA is granting consent must endorse on Notice date from which consent or consent as

varied operates.

Where determination changed – date of Review is

required.

PA is to give Council notice of available dates/ times for review

hearing and a site inspection

PA to conduct Review hearing in accordance with

procedures prescribed in regulations

representation by legal practitioner

at the leave of the PA.

JOINT REGIONAL PLANNING PANEL (JRPP) – SECTION 96E STEPS – OBJECTOR REVIEW OF COUNCIL DECISIONS

JOINT REGIONAL PLANNING PANEL (JRPP) – SECTION 96E STEPS – OBJECTOR REVIEW OF COUNCIL DECISIONS

Submission period closes. Any late submissions at the discretion of JRPPSubmissions are forwarded to JRPP within (7) days of expiry

Submission period closes. Any late submissions at the discretion of JRPPSubmissions are forwarded to JRPP within (7) days of expiry

JRPP prepares a Report which includes reasons for decisions and explanation as to why the recommendation of Council staff had not been followed. A notice of determination is to be provided to :• Person who applied for ReviewApplicantObjectorsCouncil

JRPP prepares a Report which includes reasons for decisions and explanation as to why the recommendation of Council staff had not been followed. A notice of determination is to be provided to :• Person who applied for ReviewApplicantObjectorsCouncil

Council notifies JRPP Secretariat of review application.• Sends acknowledgment to objector

Council notifies JRPP Secretariat of review application.• Sends acknowledgment to objector

Councils Admin Section:

• Confirm date, time and location for hearing• Inform applicant and objectors• Book meeting room if required• Where site meeting, make necessary arrangements

Councils Admin Section:

• Confirm date, time and location for hearing• Inform applicant and objectors• Book meeting room if required• Where site meeting, make necessary arrangements

Objector may apply to Planning Assessment Commission for a Review where a “Public Interest”Development 96E(5)(but see 96J(6) no second review

Objector may apply to Planning Assessment Commission for a Review where a “Public Interest”Development 96E(5)(but see 96J(6) no second review

Objector may appeal to L&E Court within 28 days from determination for designated development..

Objector may appeal to L&E Court within 28 days from determination for designated development..

Council decisionSatisfies objector.

Review criteria S.285

Council decisionSatisfies objector.

Review criteria S.285

Notification is prepared by Council and posted, includes:

• 1 km notif. area• Standard letters• A4 plans• Grounds for review• JRPP contact details

Notification is prepared by Council and posted, includes:

• 1 km notif. area• Standard letters• A4 plans• Grounds for review• JRPP contact details

Council provides JRPP : Letter of key issues Copy of file report LEP/DCP Plans (may be amended by applicant)

Council provides JRPP : Letter of key issues Copy of file report LEP/DCP Plans (may be amended by applicant)

Council officer will provide facts and previous assessment

Council officer will provide facts and previous assessment

JRPP is to give Council notice of available dates/ times for review hearing and necessity for a site inspection

JRPP is to give Council notice of available dates/ times for review hearing and necessity for a site inspection

Objector lodges Review Application with Council for JRPP:Fees paidGrounds for Review lodged

Objector lodges Review Application with Council for JRPP:Fees paidGrounds for Review lodged

JRPP issues Notice Determination within 28 days of lodgement.

Where JRPP is granting consent must endorse on Notice date from which consent or consent as varied operates.

JRPP issues Notice Determination within 28 days of lodgement.

Where JRPP is granting consent must endorse on Notice date from which consent or consent as varied operates.

JRPP to conduct Review, including public meeting, allowing notified persons to be heard. Legal representation not permitted without leave. All submissions considered.

JRPP to conduct Review, including public meeting, allowing notified persons to be heard. Legal representation not permitted without leave. All submissions considered.

Applicant may if dissatisfied lodge application to L&E Court within 3 months of notice

Applicant may if dissatisfied lodge application to L&E Court within 3 months of notice

Joint regional planning panel (JRPP) applications

Joint regional planning panel (JRPP) applications

Notification According to Regs or DCP by Council

(21 days?)Applicant, objectors advised of meeting

Applicant lodges

application according to

criteria (Council or

JRPP Secretariat)

File and documentation

prepared for JRPP application acknowledged

Council officer prepares

assessment report for JRPP with

recommendation

JRPP meeting arranged- on-site

- at Council

Referrals- internal- external

Objector may request review by

PAC subject to criteria

Applicant may appeal

to LEC

JRPP issues notice of

determination with 60 days of lodgement

JRPP makes decision either

adopting recommend

ation or varying it.

Council records on DA Register, advises parties

and copy to DOP website of

Determination

JRPP commenced and meeting

held. Parties heard

COMPLYING DEVELOPMENT COMPLYING DEVELOPMENT

Preparation: Can I get a CDC for whatI want?

- Apply for a Complying Development Requirements Certificate

Preparation: Can I get a CDC for whatI want?

- Apply for a Complying Development Requirements Certificate

Day 1Day 1 Day 7-9Day 7-9 Day 10 Day 10Day 2-6Day 2-6

Encourage applicants to talk

to neighbours

Encourage applicants to talk

to neighbours

Encourage applicants to meetwith council officer

for pre-CDC

Encourage applicants to meetwith council officer

for pre-CDC

Completion:OccupationCertificate

issued

Submission toCouncil or CDCertifier:

- CD application- Checklist- Construction Plans- BASIX Certificate

Council Officer or Certifier:

1. Checks compliance2. Checks no exclusion3. Inspect site4. Technical referrals5. Check standard requirements* CDC (May not be refused if complies)

PrepareComplyingDevelopmentCertificate

- Stamp Plans

1. CDC and Plans available

2. Applicant pays deposits, Home Building Levy etc., and S.94 fee

3. CDC/Plans collected

Design:

Does the designcomply with allCD code controls?

1. Streetscape2. Bulk and Scale3. Setbacks4. Building Elements5. Open Space6. Garages7. BASIX8. BCA

Post CDC:

- Regulations require notification of adjoining neighbours of issue of CDC.

- Documentation filed.

Applicants appoints Principal Certifying Authority (Council or another Certifier)Applicant to give 2 days notice to PCA before work; Do site preparation works Commence demolition and construction; Ongoing inspections by PCA.

Complying Development

Standards set out in SEPP (applies to all Councils); Allows single and 2 storey houses (demolition and new building) as

complying development; Complying Development Certificate (CDC) must be issued if it

complies with the standards (Compliance = Acceptability) Can be issued by Council or Private Certifier DoP Guidelines and FAQ Sheets available Many areas of Willoughby excluded (Conservation Areas;2(a2) zones;

flood prone; bushfire prone) Main differences are higher floor area allowed, less landscaping, no

OSD provision, less strict sunlight, privacy and view impact controls, less side setback standards for lots over 900sqm.

Need TPO approval to remove a tree before CDC No power to revoke or modify a CDC or stop work if complying Neighbours within 40 m receive courtesy notice 2 days after CDC

issued

Implications for Artarmon NSW Housing Code does not apply in the Conservation Area or

2(a2) zone but applies in other residential areas (and will also apply to industrial area and business zone);

CDC may be issued by private certifier with no prior Council (or neighbour) contact- 5 year certificate

Character of some streets may change over time Value of properties and good housing stock means that scope for

major change ( demolitions and basic project homes) is small Residents may be angry about CDC on adjoining site (lack of

notice, powerless, fear of change, amenity impacts) Faster approvals for some applications Importance of TPO protection FSR now (600sqm lot) :270sqm; under Code : 380sqm (but

includes garage) Setbacks: generally more under code Landscaped Area now (600sqm lot):240sqm ; under

Code:150sqm

1. Complying Development

Internal procedures

Responding to enquiries

Community education and information

Complying development Planning Certificate-new clause in s. 149 Certificate

2 Codes apply for 12 months (CDC Code and DCP)

2. JRPP

Appointment of Council members

Process for reporting to JRPP and Council (development over $10m)

MAIN IMPLICATIONS FOR COUNCILSMAIN IMPLICATIONS FOR COUNCILS

3. Planning Arbitrators

Internal procedures Council must defend decisions of Arbitrator if appealed to Court Community information to explain new process

4. Decide IHAP or no IHAP

5. Prepare New S.94A and S.94 Contributions Plans

6. Change in role for Councillors away from consents

7. Faster turnaround times?

8. Reduced DA revenue (CDC, PA, JRPPs).

MAIN IMPLICATIONS FOR COUNCILSMAIN IMPLICATIONS FOR COUNCILS

MAIN IMPLICATIONS FORCOMMUNITY

MAIN IMPLICATIONS FORCOMMUNITY

Complying Development

No notification of Complying Development (2 day courtesy notice of approval given)

Merit issues (overshadowing, privacy and views) deemed to be acceptable if complies

No easy mechanism to challenge certificate (complain to Private Certifier or Council but no power to revoke or modify if complies)

JRPP

Major developments dealt with by State appointed majority on Panel not Councillors

Community to make Submissions to JRPP not Council

Planning Arbitrators

Requested by applicant not resident.

Confusing new process for objectors- No Ward meetings if called to Arbitrator.

No legal representation

Faster DAs but less negotiated outcomes

MAIN IMPLICATIONS FORDEVELOPERS / APPLICANTS

MAIN IMPLICATIONS FORDEVELOPERS / APPLICANTS

1. Complying Development

Faster approvals for some housing

More / different problems with compliance and enforcement

Lower holding charges

More choice to use certifiers for housing

Less confrontation with Council and neighbours

2. JRPP

Faster / slower approval?

Less “politicisation” of some DAs

Uncertainty about performance of different JRPPs and JPPR members

Harder legal representation

MAIN IMPLICATIONS FORDEVELOPERS / APPLICANTS

MAIN IMPLICATIONS FORDEVELOPERS / APPLICANTS

3. PAC

No appeal right of public hearing held

Most applications still through Minister not PAC

4. s.94 / s.94A

More transparent and accountable administration of contributions

State levies to add to development costs

5. Planning Arbitrators

Faster approvals / refusals

External (independent?) review of decisions

Fewer appeals; lower appeal costs

Harder legal representation

Planning Reforms for NSW:Dolphin or Cow