New year, new regulations: what to know about EP&A Regulation

How you can prepare for the changes 4 min read

The Environmental Planning and Assessment Regulation 2021 (2021 Regulation) comes into effect on 1 March 2022.

Here, we explain the key things you need to know to prepare yourself for these changes.

Key takeaways 

• The 2021 Regulation replaces the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation).
• The 2000 Regulation will still apply to development applications (DAs) and applications for complying development made, but not finally determined, before 1 March 2022.
• The 'stop the clock' provisions for deemed refusal periods have been simplified. Importantly, consent authorities will have the power to reset the deemed refusal clock if they consider a DA amendment to be more than minor.
• Development consents can now be modified or surrendered without the consent of the landowner if the original DA did not require landowner consent. You can also withdraw a modification application after it has been made.
• Additional types of development, including energy recovery from waste, will now be designated development.

What are the key changes?

Simplified ‘stop the clock’ provisions

Currently, if a consent authority does not determine a DA within a prescribed period (now referred to as the Assessment Period in the 2021 Regulation), the applicant can commence a Land and Environment Court appeal against the 'deemed refusal' of the DA.

The 2021 Regulation streamlines how Assessment Periods are calculated, and clarifies circumstances when they stop running – often referred to as 'stop the clock provisions'.

The key changes to the provisions are:

• State Significant Development (SSD) – if the Planning Secretary requests a response from the applicant to any submissions received during the public exhibition period, the clock will only be stopped for the period between the date of the Secretary's request and the earlier of:
  • the date on which the applicant provides a response to the Secretary; and
  • the deadline for a response specified in the Secretary's request (or any further period allowed by the Planning Secretary).

This is a significant change from the 2000 Regulation, in which the clock would stop for the entire period between the date of the Secretary's request and the applicant's response. In practice, this means applicants for SSD may not have to wait as long for the right to commence a deemed refusal appeal.

• All development applications –
  • if an applicant amends a DA before determination, and the consent authority considers the amendment to be more than minor, the consent authority can notify the applicant the DA will be taken to have been lodged on the day the applicant applied to amend it. This will reset the deemed refusal clock and give the consent authority, and any concurrence or approval bodies, an additional 25-day period (from the date the applicant applied to amend the DA) to request additional information and stop the clock. This will become an important timing consideration for those wanting to start a deemed refusal.
  • to recognise for DAs being lodged on the NSW Planning Portal instead of hard-copy form, the clock will no longer be stopped for the first two days following lodgement, or the two days following the date the consent authority forwards additional information (provided by the applicant) to a concurrence authority or approval body.

Streamlined process for modification applications

For modification applications, or surrenders of development consents, the landowner no longer needs to give consent if the original DA could have been made without the consent of the landowner.

Modification applications made under section 4.55(1) and (1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act) do not need to be referred to concurrence authorities or approval bodies, except where they propose changes to conditions or general terms imposed by the concurrence authority or relevant approval body respectively.

Both changes will simplify the process of modifying and surrendering consents.

Withdrawal and rejection provisions for modification applications

As with DAs, the consent authority may now reject a modification application in certain circumstances.¹ Now, existing provisions relating to the withdrawal of DAs also apply to modification applications.²

Revised categories of designated development

The 2021 Regulation outlines the following emerging technologies as designated development, which are submitted to a more rigorous assessment (if the development falling within these categories is not already State Significant Development):

• energy recovery from waste;
• contaminated groundwater treatment;
• oil or petroleum waste storage;
• large-scale battery storage facilities;
• geosequestration (i.e. carbon capture); and
• desalination systems or works.

Other changes to know about

• Part 5 assessment: Clause 228 now explicitly refers to ‘review of environmental factors’. It recognises terminology commonly used by practitioners and allows the Secretary to issue guidelines (now renumbered as clause 170).
• Existing use rights provisions: While the existing use provisions in the 2021 Regulation are largely unchanged from the 2000 Regulation, the term ‘floor space’ has been replaced with ‘gross floor area’, when considering whether an existing use can be changed. This adopts the Standard Instrument – Principal Local Environmental Plan (Standard Instrument LEP) definition of this term, which allows for consistency in the way floor area is calculated by applicants and consent authorities.
• Giving public notice of the grant of consent: It is now mandatory to publish public notice of the grant of development consent on the consent authority’s website.
• Use of Planning Portal in Court proceedings: A development application subject to Land and Environment Court proceedings can be amended without using the NSW Planning Portal. However, modification applications subject to Court proceedings can still only be amended using the Planning Portal.
• Certification of Development: The regulations relating to the certification of development (including the issue of Construction Certificates, Occupation Certificates and Subdivision Certificates) have now been moved to a separate regulation named the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021. This regulation commenced on 1 January 2022.

More information

• The 2021 Regulation can be found here.
• A list of the clauses in the 2021 Regulation and the corresponding clauses from the 2000 Regulation can be found here.