Response to the proposed amendments to the EP&A Act UDIA NSW

Transcription

1 Response to the proposed amendments to the EP&A Act UDIA NSW March 2017

2 page 1 Contents 1. INTRODUCTION SCHEDULE 1 PRELIMINARY SCHEDULE 2 PLANNING ADMINISTRATION SCHEDULE 3 PLANNING INSTRUMENTS SCHEDULE 4 DEVELOPMENT ASSESSMENT AND CONSENT SCHEDULE 5 INFRASTRUCTURE AND ENVIRONMENTAL IMPACT ASSESSMENT SCHEDULE 6 BUILDING AND SUBDIVISION CERTIFICATION SCHEDULE 7 INFRASTRUCTURE CONTRIBUTIONS AND FINANCE SCHEDULE 8 REVIEWS AND APPEALS SCHEDULE 9 IMPLEMENTATION AND ENFORCEMENT SCHEDULE 10 MISCELLANEOUS ADDITIONAL REQUIREMENTS CONCLUSION... 11

3 page 2 1. Introduction The Urban Development Institute of Australia (UDIA) NSW is the leading property industry group promoting the responsible growth of this State. We have around 500 company members and more than 3,000 of their employees attend our events, sit on our committees, undertake training or are involved in the activities of the organisation on an annual basis. Our organisation is the oldest property development advocacy group in the country, having been established in Our policy agenda seeks to establish a roadmap for the creation of more liveable, affordable and connected cities in NSW. UDIA NSW is governed by a 13-person Council that is elected annually by the membership. We have 8 policy committees that meet monthly and they actively advise the council on policy positions. UDIA NSW aims to secure the viability and sustainability of urban development for our members and therefore the communities that they create. Our policy agenda seeks to establish a roadmap for the creation of more liveable, affordable and connected cities in NSW. UDIA NSW supports the continuing reform of the planning legislation and instruments being undertaken by the Government. Whilst there are many positive aspects to the Bill, UDIA NSW notes that much of the detail is to be implemented by way of regulation which has not been provided as part of this exhibition process. UDIA NSW submits that without the draft regulations the practical effect of many of the reforms are difficult to predict and create uncertainty. For this reason, the Bill should not be introduced to Parliament without a concurrent draft of the proposed regulation and the other contemplated guides, templates and policies. The exhibition of regulations is essential to understanding how these amendments may be implemented. The remainder of this submission adopts the categorisations and numbers of the Schedules to the Bill. 2. Schedule 1 Preliminary UDIA NSW supports the revised objectives of the Act to insert objectives around built design and housing diversity and affordable housing. The existing objective that promotes the orderly and economic use and development of land should be retained or something similar which reflects the contribution to the economy. With respect to design in the built environment, UDIA NSW notes the first step in this process has been the launch of a draft Architecture and Design Policy for NSW. UDIA NSW notes that many Councils do not have in-house urban designers or architects and it is impossible to synthesise such expertise and input into a guide. This Policy is at risk of creating uncertainty for proponents of development as different minds apply their view of good architecture and design. There should be a provision for an independent panel of experts to determine what constitutes good design. 3. Schedule 2 Planning administration UDIA supports the retention of the independent planning panels for State and regional development and the formalisation of independent planning panels for local Councils. We note that there is now a Sydney Central District Planning Panel, UDIA NSW contends that this should be the consent authority for DAs with a capital investment value of less than $10 million at which point the Central Sydney Planning Committee s jurisdiction will apply.

4 page 3 UDIA NSW supports a community participation plan requirement particularly where a model or template is created to ensure greater consistency. UDIA NSW recommends that all planning authorities should adopt the model or template except in exceptional circumstances so that the level of future variation among Council areas is limited. Also, it should be made clear that non-compliance does not necessarily result in a breach of procedural fairness and a right of an objector to challenge the validity of any approval. Clause 2.26(1) of Schedule 2 of the Bill requires panels to consult with Council in relation to the exercise of any of its functions that will result in the making of a decision that will have, might reasonably be expected to have a significantly adverse financial impact on a council. Significantly adverse financial impact is not defined under the Bill and therefore there is a risk that the panel will be required to consult with a council in relation to many development applications. This could potentially delay the preparation of the panel s determination of applications. The term significantly adverse financial impact should be defined to provide some certainty for the panels, industry and the community and to prevent councils from utilising this provision to unnecessarily delay the assessment and determination of a DA. UDIA NSW notes that the legislation is silent on the positive effects that may flow from a decision. We note that the Regulations are to contain further detail on the public exhibition requirement, triggers for re-exhibition and the requirements to undertake consultation prior to lodgement of a DA. Such detail has not been provided. We consider that many proponents already undertake substantial pre-lodgement consultation for larger projects and query what it would achieve. UDIA NSW recommends that there needs to be an incentive for applicants to undertake pre-lodgement consultation. There is also a risk that it will lead to greater judicial review proceedings for a failure to undertake pre-lodgement consultation where the requirements are not clear or subject to interpretation. Clear guidelines are required but must contain some flexibility to allow for innovation and nonregulatory compliant applications which achieve planning objectives. The NSW planning portal is emerging to be a very valuable tool. However, it has taken longer than expected for the portal to achieve what it set out to achieve 3 years ago. Whilst UDIA NSW supports the greater provision of information on the planning portal, such as provision of development consents, we are concerned that requiring that a consent is not operative until it is uploaded on the portal will delay development, noting that Councils have been required to have DA registers for over 20 years and many still do not have searchable electronic records of their own, let alone a consistent state-wide format that could work with the planning portal. Councils will need substantial time to adopt the State technical requirements, and development authorised by consents should not be delayed during the transition. Councils need to be incentivised with resources, these incentives should be linked to KPI s and penalties imposed for non-compliance. Clause 6 of Schedule 1 (Item [2] in the EP&A Bill) specifies a 14-day minimum mandatory exhibition period for all local development applications. The Department s summary of proposals brochure describes this reform at page 7: As part of the introduction of the requirement for community participation plans, it is also proposed to update the current minimum public exhibition requirements. For example, all applications for consent for local development will be required to

5 page 4 be exhibited for a minimum of 14 days. Councils currently have some discretion over whether to exhibit such applications. UDIA NSW does not support this reform. Mandatory public exhibition requirements should not be included for applications or modifications of minimal environmental impact. Local development that is permissible, complies with all development standards, and meets all the relevant development controls should not require a 14-day exhibition period. Requiring exhibition for compliant development defeats the purpose of consulting on the content of the LEP and DCP as it duplicates the consultation process. It is expected that the consultation process for these plans will increase in quality and quantity under the new Community Participation plans. The community has already had a say on what type of development and standards are considered acceptable in an area, and a development application that complies with all the standards should not need to be exhibited. Rather, the community should be notified that the development application has been lodged. This reform will cost councils significant resources and increase the time taken to determine even the simplest and most straightforward of DAs. 4. Schedule 3 Planning instruments UDIA NSW strongly supports a model or template DCP with standardisation of format as well as content. As with the community participation plan, the assumption should be that all Councils adopt the template and they must have exceptional circumstances to divert from the template. We also recommend that a page limit be imposed. UDIA NSW has long supported the hierarchy of strategic plans. However, the local strategic planning statements may delay the creation of local environmental plans that are to reflect the higher order plans and create another layer of complexity into the planning system. That is because it is likely that such plans would have to be considered as an element of the public interest in determining applications under the Act. Existing time constraints should apply to DA s submitted in accordance with current LEP, regardless of status of strategic plans, as assessment officers can be briefed as to Council intent ahead of formal adoption. Any strategic planning statement should be a short, perhaps 1-5 page document so that resources are not diverted to the statement instead of the local environmental plan. UDIA NSW recommends that the Objectives of Strategic Plans should be given weight over LEP specifics where a DA proposes non-complying outcomes that achieve the strategic objectives. The five-yearly LEP check against set criteria (see Schedule 3.1[13] on page 44 of the Bill) is admirable but unlikely to eventuate. In practise, it is common for Councils to recreate the existing provisions in a new LEP without a proper review of all provisions and zoning. 5. Schedule 4 Development assessment and consent The concept of transferrable conditions has been introduced in proposed section 80A(4A) to address the current overlap between conditions of a development consent (or project approval) and licences and approvals issued by other agencies, for example an Environmental Protection Licence (EPL). However, it is not clear from the Bill as to how

6 page 5 this repealing of specified conditions from a development consent would actually work in practice. UDIA NSW recommends that it be a requirement for the conditions to be drafted in such a manner that it is clear to the proponent, relevant government agencies and the broader public that the specified condition(s) no longer have effect. Additionally, the proposed section 80A(4A) does not allow for any retrospective application of the provision. Therefore, as currently drafted the holders of existing development consents would continue to have to operate under multiple regulatory approvals which regulate the same matters. UDIA NSW suggests that clause 80A(4A) be amended to allow proponents to apply (by way of letter and without any formal application, environmental assessment or fee), for any conditions of development consent that are regulated by other authorisations under other Acts to be deleted from development consents. Further, section 80A(4A) as currently drafted refers to the granting of development consent, and therefore would not apply to modifications of a development consent. UDIA NSW suggests that the section be extended also to modification applications. UDIA NSW is concerned with proposed section 80A(4B) which would permit consent authorities to impose development consent conditions requiring financial assurance. Currently, there are limits on such a power. The concern relates to the broad discretion and that such conditions could affect the financial viability of a development if a large guarantee is required as a condition of consent. Noting that to supply such guarantees the cash is set aside unable to be accessed for some months or years despite no or little risk of the applicant being unable to perform its obligations. We also note that mining and environmental legislation already requires bonds under other schemes, and there could be a double up of requirements. Further, if an applicant is otherwise satisfied with a development consent except for this one condition relating to financial assurance, it would be forced to appeal and then the whole consent is at risk not just the condition. UDIA NSW is unsure as to the purpose of section 85A(2) which enables the regulations to specify the kind of development for which a certifier cannot issue a CDC. It is unclear as to the rationale for this section or the types of development that the Department is envisaging will be included in any such regulations. UDIA NSW contends that all forms of complying development should be able to be certified by an accredited certifier or Council. In many circumstances, due to the limited resources in Councils it is far quicker for a proponent to get an accredited certifier to certify development, rather than going through Council. Furthermore, without additional resources, it is difficult to see how Councils would be able to meet the 10 or 20-day time frame for the determination of complying development certificate applications if all applications for certain types of development had to be made to Councils rather than proponents also having the option of accredited certifiers. If there is any concern regarding the decisions or processes of accredited certifiers, this matter should be raised with the Building Professionals Board rather than being dealt with through restrictions on proponents. UDIA NSW is also concerned about the uncertainty the provision creates in proposing that any limitation on certification be included in the regulations. The planning instruments already limit the ability to issue CDCs. Any concerns about certifiers, should be done by way of a change to the instrument, rather than reviewing both the instrument and the regulations to see if a CDC can be issued. UDIA NSW recommends that the Building Professionals Board be responsible in accrediting, auditing and as necessary disciplining errant certifiers. It is essential that the certification process has integrity and the trust of the public.

7 page 6 UDIA NSW supports new section 91A(4A) which could help reduce inter-government agency road blocks for integrated DAs. This is a major cause of delays in issuing development consents. UDIA NSW recommends that should an authority fail to respond within the statutory timeframes, there should be a deemed approval provision which allows a Council to impose conditions on behalf of an authority. UDIA notes that there is a new requirement for a statement of reasons and that any modification is required to consider the statement of reasons in the future. Our concerns with this statement are: 1. There have been instances previously where intent has not been clear; 2. For any modification application, there is a substantially the same development threshold test. The statement of reasons and how that intersects with this test is likely to result in a more limited ability to modify a development. It is already very difficult to modify a consent. If this change to the Act is adopted, then it is likely to result in multiple DAs being applied for which then creates issues about how those DAs work together; 3. it can create a legal challenge if the reasons don t comply with the legislation and such a decision is subjective. This creates uncertainty for a proponent as to whether there has been compliance for 3 months. Now, the only mandatory publishing protocol is such things as a DA description and the address. UDIA NSW understands that Councils incur costs in enforcing compliance with the Act. For this reason, it has no objection in principle to proposed section 105(1)(f1) enabling a levy to be imposed on CDCs. However, the levy should only be required before work commences (in case the CDC is never implemented) and there should be a cap. UDIA NSW is aware of examples where Councils have been imposing levies on DAs at a value of 0.25% of the works at the DA lodgement stage. This is affecting the viability of development projects. The ability to stop work for 7 days (section 105(1)(f2) should also be limited so that it can only be once per DA and where Council has reasonable grounds to suspect there is a breach. This stops spurious claims delaying projects. Section 122C(2) enables a condition to be imposed requiring an environmental audit or monitoring to be imposed unilaterally and it is not clear there are any appeal rights. The ability to unilaterally vary development consents is unique and should not be imposed lightly. When an applicant decides to commence development, they do so understanding the constraints - to impose unilaterally new conditions changes the playing field without notice. The power of the Minister to unilaterally modify a development consent should be expressly limited to only those modifications that are required to either: (a) ensure consistency between the conditions of a development consent and other planning or environmental approvals; or (b) remove duplication between the conditions of a development consent and other planning or environmental approvals. Further, the Bill provides that any modification application cannot retrospectively approve unauthorised development. This limits such development, whether accidental or not, to a building certificate (now to be referred to as a building information certificate) as the only way to occupy the building. No occupation certificate will be possible. Yet many contracts for sale require an occupation to be issued prior to completion. There is already a

8 page 7 provision preventing the issue of a construction certificate for retrospective works. This new provision is inflexible and does not consider the circumstances of the unauthorised work e.g. an unstable wall, employee error, but puts at risk substantial development costs and inability to complete sales of apartments, because of the inability to rectify the error with an approval and then an occupation certificate. 6. Schedule 5 Infrastructure and environmental impact assessment The designation of infrastructure corridors is a concept that is creeping into more and more planning instruments, however, it creates tremendous uncertainty for development. It means development cannot occur whilst investigations are made, but because it is not yet zoned for a public purpose, there are no compensation rights either (subject to demonstrating hardship). It is understandable that these corridors are required, but they should have time limits. Unless they are reviewed, exhibited and re-gazetted they should be deemed not to apply after 5 years. 7. Schedule 6 Building and subdivision certification UDIA NSW notes that there is now no definition of interim occupation certificate although it seems that certificates can still be issued for parts of a building like an interim OC would do. UDIA NSW encourages the reinstatement of the separate definitions because of their general usage (including in current development consents) and familiarity with the difference. If this change is to occur then there needs to be appropriate savings and transitional provisions to clarify how interim OCs are to be treated where referenced and which conditions of approval apply to occupation certificates for part of a building rather than the whole building. UDIA NSW contends that Interim occupation certificates should be retained. They are very useful when a building is fit for occupation but does not yet strictly comply with the consent. There is ambiguity between the BCA and EPA&A Act in this respect and interim OC s effectively deal with this issue. 8. Schedule 7 Infrastructure contributions and finance The UDIA supports the ability of the Minister to issue enforceable directions to Council as to the methodology to be used in determining the contribution to be made by a developer under a planning agreement. Section 94EF(1A) puts substantial discretion in the Planning Secretary such that a proponent will not know what contributions if any will be required at the time that a development consent is granted. Given the process to be followed by the Minister under s94ee for the determination of special infrastructure contributions it is not clear as to why s94ef(1a)(b) is required as the determination should be clear as to when a development contribution is payable under the Subdivision. Special Infrastructure Contributions should be flagged in District Plans and be defined in LEP/SEPP. For planning proposals outside the (currently non-existent Metropolitan Development Programme), SIC should be flagged early in the process and defined through VPAs. 9. Schedule 8 Reviews and appeals As per above, UDIA NSW is not in support of a development consent becoming operative until it is on the planning portal until such time as all Councils are compliant with the technical requirements because of concerns about delays (section 83).

9 page 8 Internal reviews (Division 8.2) are strongly supported particularly as they relate to integrated and panel decisions. Proposed section 8.13 provides that development consents cease to have force upon a merit appeal being lodged. The current wording, fails to allow for the circumstance where an appeal is withdrawn with no decision made by the Court. In this circumstance, the development consent should come back into effect. Proposed section 8.15 is currently provided for under existing law and UDIA NSW questions the need for the section. Proposed section 8.15(4) does not quite reflect current practice with appeals from panel decisions. Generally, the panel instructs via the Department of Planning. We suspect the panels will not have sufficient capacity to instruct directly on each and every appeal and need only do so where Council s position differed from the panels in the original decision. Proposed section 8.21 relating to appeals from implementation of security conditions provides a time frame of 6 months from when the work has completed. The word completion is likely to be contentious in such a situation, and so the time limit should enable appeals to determine completion. Additionally, under the proposed clause 8.21 where a developer wishes to appeal against a council's failure or refusal to release the security, where the security is provided in respect of contingencies that may arise after completion of the work to which the security relates, the appeal can't be commenced earlier than three months or later than six months after completion of the work. This new time limit may be unworkable, because section 80A(6)(c) specifically allows a consent authority to retain security for a six-month defects liability period, by which time a developer would have already lost its right of appeal against a failure to release the security. 10. Schedule 9 Implementation and enforcement Proposed new Order 1 is a combination of the current orders 1 and 9 but with much broader powers. It applies to any users of the building not just owners or occupiers and where the activity is not necessarily in breach of legislation. 11. Schedule 10 Miscellaneous The Independent Planning Commission (IPC) is to replace the Planning Assessment Commission (PAC), and it is proposed that the panel will no longer review applications but instead will provide guidance to the Department as to the issues for assessment. Whilst it is intended that the new panel process and function will reduce approval timeframes, UDIA NSW is concerned that this will not occur (and timeframes will likely be increased) if the panel holds two public hearings. Prescribed timeframes should be inserted into the Act to provide certainty to proponents around the length of the process. The removal of reviews from the functions of the PAC will bring clarity. There has been much confusion as to the difference between a project being referred to the PAC for a review, for a public hearing, or both a review and a public hearing. Add to that the confusion in relation to the differences between a public hearing and a public meeting of the PAC and it becomes very difficult to easily determine the circumstances when applicant appeal rights and third party objector appeal rights are affected. If PAC reviews no longer affect appeal rights (as they did under Part 3A), and only public hearings extinguish appeals, removing reviews from the functions of the PAC (and relying only on the general advice function) seems logical.

10 page 9 Any public hearing should be inquisitorial and scientifically based and allow further clarification and discussion of key issues arising from the submissions made in respect of the development. Any recommendations or guidance given by the IPC in its report should be limited only to issues arising from the submissions made in respect of the development and not be used to add additional matters to the SEARs for assessment by the proponent. A second public hearing should only be held in circumstances where an application has been amended, substituted or withdrawn and replaced after the first public hearing but before it has been determined, and the environmental impact of the development has not been reduced. Section 75W and the repeal of Part 3A transitional provisions is of concern without a clear timeline. In addition, over time the substantially the same development test has been applied more narrowly by the Land and Environment Court, such that there is a real risk modifications cannot be obtained without a new DA and a substantial assessment process. UDIA NSW recommends that a broad-based modification power (with no substantially the same development test) be included for State Significant Development. The threshold contained in section 96(2) of the EP&A Act regarding development as modified to be substantially the same development is a difficult and arguably inappropriate test to apply to State Significant Development given that these projects are typically large, complex and regularly occur over a long period of time and in multiple stages. The test as it currently stands requires an assessment of both quantitative and qualitative factors. The fact that State Significant Development projects often have multiple aspects and are carried out in stages over time can make the comparative exercise difficult and unworkable in the context of such developments. Further the word modify in itself contains some limitations on what could be done under s96 for State Significant Development being development that involves alteration without radical transformation, so a broad-based modification power would not be a free for all. UDIA NSW makes the following recommendations in respect of the proposed repeal of the Transitional Part 3A provisions: (a) (b) (c) Where SEARs have already been given for a modification application under the former section 75W of the EP&A Act, the Regulation should enable a modification application to be determined under the former section 75W if an EIS is lodged within 12 months of the commencement of the Bill (as opposed to 12 months from the SEARs being issued) Modification applications under section 75W should be received for a further 12 months (as opposed to two months) following the commencement of the Bill. UDIA NSW contends that two months is too short a period of time given the often-large amounts of environmental assessment and documentation that need to be prepared to accompany a modification application. Further, many companies have made investment decisions and future project plans based on the availability of section 75W as an approval pathway. The Regulation should make it clear that when determining whether the modification is substantially the same development as the original approved development for the purpose of any future s96 applications, the consent authority should have regard to the development approved pursuant to the Part 3A approval as modified up until the date of the repeal of the Transitional Part 3A provisions ( and including any

11 page 10 modifications made during the transitional window upon the repeal of the Transitional Part 3A provisions). (d) A provision should be included to provide that any Part 3A approval is taken to be a development consent for the purposes of modification of the approval following the commencement of the transitional provisions of the Regulation. This is to avoid confusion regarding the status of a Part 3A approval when interpreting provisions of the EPA Act or EPIs. Former Part 3A Concept plans are proposed to be transitioned to Part 4 by regulation. It is presumed concept plans will be deemed stage 1 of a staged DA under Part 4 (Div 2A of Part 4). UDIA NSW queries whether the current test of generally consistent in Schedule 6A will be continued or whether the cannot be inconsistent test in s.83d is to be adopted instead. Section 96 is not appropriate for modifications to concept plans, given the widely varying levels of detail that were accepted by the Department in concept plans during the operation of Part 3A. A modification power for transitioned concept plans needs to be as flexible as 75W which applied at the time these concept plans were prepared. The Department of Planning needs to provide more support to councils and applicants dealing with concept plans that have been transitioned. Additionally, these reforms could include changes to the transitional provisions to clarify their operation. UDIA NSW recommends the following: The Department of Planning provide more guidance to councils and State agencies on the scope of generally consistent Amendments should clarify the application of integrated development provisions to subsequent DAs subject of a concept plan, given clause 3B(2)(g) of Schedule 6A and the inconsistent advice the Department of Planning has been issuing to proponents. The Department of Planning should provide more support to State agencies who are referred the subsequent DAs (either as integrated referrals or for consultation purposes) and guidance to agencies on the relationship between the approved concept plan and current DA. In some instances, agency staff have changed since the concept plan was originally referred and new staff have taken contrary views of matters already settled as part of the concept plan approval. 12. Additional Requirements The EP&A Act Regulations need to define alternate non-public relevant utility providers (water, energy, telecommunications, mobility) as a person under section 4 Definitions public authority. EP&A Act section 56(2)(d) should be amended to remove the negativity and to broaden the public authority classification beyond State and Commonwealth. Alternatively, a new sub-clause could be added to include all relevant utility public authorities. Section 56(2)(d) requirements need to be clarified that where a utility is referred to, it should include licensed private utilities. Where innovation and non-standard outcomes are proposed, pre-gateway review should be mandatory, chaired by a non-departmental body such as a (Sydney Planning

12 page 11 Panel/Regional Planning Panel). The outcomes of that review should then form the basis of the Gateway Determination so that innovation is built into the Planning Proposal assessment. 13. Conclusion The draft regulations will be critical to determining the effectiveness of these proposed amendments to the Act and UDIA NSW calls for the government to release the companion regulations before introducing the Bill to Parliament. Should you wish to further discuss any of the above please contact Justin Drew, General Manager, Policy & Corporate Affairs on or at