Changes to and consolidation of SEPPs – a S(t)EPP in the right direction or a missed opportunity?

A time of intensive reform for planning policy 10 min read

It has been a time of intensive reform for planning policy. In this Insight, we examine recent changes to state environmental planning policies (SEPPs), and ask whether they achieve the stated objectives.

Key takeaways 

• The State Environmental Planning Policy (Education Establishments and Child Care Facilities) 2017 (the Education SEPP) was recently amended to provide greater clarification, introducing new categories of development (including residential accommodation for students) and changing the approval pathway for certain educational establishments based on new capital investment value thresholds.
• Like other SEPPs discussed in this Insight, the Education SEPP has been consolidated with three other SEPPS to form the new State Environmental Planning Policy (Transport and Infrastructure) 2021.
• Aiming to simplify the NSW planning system, 45 existing SEPPs (former SEPPs) have now been consolidated into 11 new SEPPs. Not all SEPPs have been included (eg the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 remains standalone). Consolidating former SEPPs has not introduced any substantive amendments other than separation into chapters (and consequential changes to numbering).

Part 1: Amendments to the Education SEPP

In November 2020, the Department of Planning and Environment foreshadowed changes to the Education SEPP in an Explanation of Intended Effect (the EIE). While not all the canvassed changes were implemented, we explore below the key changes that have been made. The Education SEPP has now been consolidated within the new State Environmental Planning Policy (Transport and Infrastructure) 2021.

Permissible uses on adjoining land

Site compatibility certificates are required under the Education SEPP to certify a proposed development is not inconsistent with surrounding land uses. The amended provisions now clarify that as long as a site compatibility certificate has been issued, any development permissible without consent on land adjoining an existing educational establishment is also permissible on the land on which it is located. This allows educational establishments to expand and residential accommodation to be developed on land where educational establishments already exist.

Campus student accommodation

In a welcome change, residential accommodation for students is no longer excluded from 'development for the purpose of a school'. Further, the development of 'campus student accommodation' has been introduced as a new category, permissible with consent within the boundaries of an existing educational establishment. The change complements the recent introduction of the State Environmental Planning Policy (Housing) 2021 governing off-campus student accommodation (although the term 'student housing' is not expressly used) and will provide more opportunities for student accommodation within the boundaries of existing establishments.

Development of facilities without consent

The amended Education SEPP allows two-storey facilities (such as libraries, classrooms, kiosks, cafeterias or bookshops) to be developed by, or on behalf of, a public authority. Within the boundaries of existing schools, universities and TAFEs, these facilities are permissible without development consent. Previously, this type of development was limited to one storey.

For schools, development must not result in a 'prohibited increase in student or staff numbers'. This is defined as an increase greater than 10% or 30 students compared with the average number of students for the previous 12 months, or an increase in staff by more than 10% compared with the 12-month average.

Increased threshold for State Significant Development

An amendment to the State Environmental Planning Policy (State and Regional Development) 2011 (now part of the new State Environmental Planning Policy (Planning Systems) 2021) was also introduced late last year, increasing the threshold for educational establishments to be considered State Significant Development (SSD). The triggers for the SSD pathway are now:

• $20 million for new schools (previously, all new schools were SSD); and
• $50 million for alterations and additions to an existing school and demolition (previously, the trigger was $20 million) and for tertiary institutions (previously $30 million).

There are benefits and drawbacks to these changes. A number of DAs for educational establishments will no longer be SSD and will therefore not require Secretary's Environmental Assessment Requirements or an EIS. However, this means more DAs will need to be assessed by local councils or regional panels.

Other amendments

There have also been changes to the development controls for schools, including:

• the timeframe for temporary (ie demountable) classrooms, increased from 24 months to 48 months;
• 'classrooms' are now explicitly included as a 'teaching facility' under the complying development provisions;
• 'canteens' have been added to sit alongside cafeterias as a category of complying development; and
• clarification that the previous term 'bookshop' meant a 'shop selling school-related goods to students and staff' as opposed to a shop that services the public.

Interestingly, some amendments the EIE canvassed were not adopted in the Education SEPP, including:

• clarification that a new campus should be assessed as a new school rather than an alteration or addition to the existing school when it is constructed some distance away. Instead, the definition of 'educational establishment' has remained unchanged and this is not addressed by any other amendments.
• a new non-discretionary development standard requiring a 200-metre separation distance between childcare centres was proposed in the EIE but not introduced. However, a new maximum floor space ratio of 0.5:1 has been introduced for centre-based childcare facilities in the R2 Low Density Residential zone (unless another EPI or DCP sets a maximum FSR for the facility).
• 'Innovation hub activities' was signposted as a new use permissible with development consent within existing tertiary institutions, but there is no mention of innovation hubs in the amended policy.

Part 2: Consolidation of SEPPs

A move towards principles-based planning

Those familiar with the DA assessment process in NSW know that multiple SEPPs will often apply to a single site or development type. Attempting to simplify matters, late last year the Department of Planning and Environment announced its intention to reduce the number of SEPPs, by consolidating 45 of them into just 11. This is part of a broader SEPP review, including the repeal of the housing-related policy and commencement of the State Environmental Planning Policy (Housing) 2021 in November 2021.

This consolidation reflects a larger move towards principles-based planning and development. SEPPs are organised thematically into nine focus areas, presumably to align with the nine Minister's Planning Principles discussed in our Insight. Importantly however, on 14 March 2022 the new Minister for Planning and Minister for Homes, Anthony Roberts, announced that those Planning Principles had been 'discontinued', and the Ministerial Direction giving effect to those Principles had been revoked.

While the consolidated SEPPs have new names and structures, there has been no change to their operation or legal effect. Consolidation was based on the transferred provisions arrangements under the Interpretation Act 1987 (NSW). Savings and transitional provisions, which preserve specific rights, and obligations from the former SEPPs have not been transferred. However, all savings and transitional provisions of the former SEPPs are still in force despite their repeal.

Consolidation: a missed opportunity?

Although intended to 'make the system simpler', the consolidation of former SEPPs is more about reshuffling than reform. More fundamentally, the thematic reorganisation was based on now-abandoned Planning Principles, which raises questions about the utility of the exercise. Ultimately, this is likely to be viewed as a missed opportunity to provide greater clarity in what is already a complex planning regime in NSW. For example:

• references to agencies long since abolished or transferred to a new name or department remain in the consolidated SEPPs, as do references to repealed or amended legislative provisions, including the former SEPPs. These legacy references add unnecessary complexity for those interpreting the new SEPPs, and could have been avoided by a more considered process of consolidation and restatement; and
• many chapters of the new SEPPs have their own dictionary, resulting in more than one dictionary within a single consolidated SEPP, with duplicated or conflicting definitions.

Whether these inconsistencies will give rise to bigger issues for practitioners grappling with an already complex planning system remains to be seen.  

Next steps

Please contact a member of our Environment & Planning team if you would like to discuss the implications of the recently amended Education SEPP (now part of the State Environmental Planning Policy (Transport and Infrastructure) 2021) or the consolidated SEPPs.