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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