CHANGES TO THE NSW PLANNING LEGISLATION- The Brave New World

1. CHANGES TO THE NSW PLANNING LEGISLATION-The Brave New World GREG WOODHAMSEnvironmental Services DirectorWilloughby City Council

2. THE 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.

3. PLANNING ASSESSMENT COMMISSION (PAC) • 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

4. JOINT REGIONAL PLANNING PANELS (JRPP) • 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

5. PLANNING ARBITRATORS (PA) • 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

6. DEVELOPMENT CONTRIBUTIONS • 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)

7. NEW PLANNING LEGISLATION Yes It is exempt development? DO IT Check ED Code Yes Is it complying Development? Check CD Code COUNCIL / CERTIFIER JRPP Objector review Yes Appeal LEC Council DA PA Is it Local development/ Planning arbitrator matter? Applicant review If Council agrees to applicant appeal Appeal Council DA LEC No Review Is it JRPP? Objector review PAC Objector Appeal (Designated) Yes JRPP Applicant Appeal unless public hearing Appeal LEC Yes Critical Minister (no appeal) Is it part 3A? Yes LEC if no Infrastructure Appeal public hearing No PAC

8. REVIEWABLE DETERMINATIONS / APPEALS Council Planning Arbitrator Review Appeal DA Council Appeal DA Council Review Applicant Appeal DA JRPP JRPP Objector Review PAC DA No Appeal Right Public Hearing PAC (if not JRPP) DA No Public Hearing Appeal Council Objector Review JRPP DA • (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”)

9. PLANNING ARBITRATOR (PA) Neighbour Submission period closes. Any late Submissions at the discretion of PA. Neighbour Submissions are forwarded to PA PA issues Notice of Determination within 21(?), 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. • Council Determination: • Deemed refusal • Condition of • Development • Consent • or S96 • Deferred • Commencement • Refusal Council Determination: Deemed refusal Condition of Development Consent or S96 Deferred Commencement Refusal (non compliance with Act or Regs) • Neighbour Notification • posted includes: • Standard letters • A4 plans • Grounds for • review • PA contact • details • Council contacts Dir. Gen. DOP. (7 days) • Arbitrators are nominated one or two are appointed • Council is notified • of PA appointment • + contact details • 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 • Applicant lodges Review Application. • (28 days) • Fees paid • Plans • Grounds for • Review • Acknowledgement • PA prepares a Report and notice of determination for: • Person who • applied for Review • Objectors • Council Council records Notice of Determination PA is to give Council notice of available dates/ times for review hearing and a site inspection Applicant for Review advised of details of appointment of PA If Council agrees Appeal to L&E Court S.97(5) (Then no review) Applicant may if dissatisfied lodge application to L&E Court within 3 months of notice S.97(6). PA to conduct Review hearing in accordance with procedures prescribed in regulations representation by legal practitioner at the leave of the PA. • 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

10. JOINT REGIONAL PLANNING PANEL (JRPP) – SECTION 96E STEPS – OBJECTOR REVIEW OF COUNCIL DECISIONS 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. • Notification is prepared by Council and posted, includes: • 1 km notif. area • Standard letters • A4 plans • Grounds for review • JRPP contact • details Council decision Satisfies objector. Review criteria S.285 Submission period closes. Any late submissions at the discretion of JRPP Submissions are forwarded to JRPP within (7) days of expiry Council officer will provide facts and previous assessment Objector may appeal to L&E Court within 28 days from determination for designated development.. Objector may apply to Planning Assessment Commission for a Review where a “Public Interest” Development 96E(5) (but see 96J(6) no second review • 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 Review • Applicant • Objectors • Council Objector lodges Review Application with Council for JRPP: Fees paid Grounds for Review lodged • Council notifies JRPP Secretariat of review application. • Sends • acknowledgment to objector Council provides JRPP : Letter of key issues Copy of file report LEP/DCP Plans (may be amended by applicant) JRPP is to give Council notice of available dates/ times for review hearing and necessity for a site inspection • 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 Applicant may if dissatisfied lodge application to L&E Court within 3 months of notice JRPP to conduct Review, including public meeting, allowing notified persons to be heard. Legal representation not permitted without leave. All submissions considered.

11. Joint regional planning panel (JRPP) applications Notification According to Regs or DCP by Council (21 days?) JRPP issues notice of determination with 60 days of lodgement Applicant, objectors advised of meeting Objector may request review by PAC subject to criteria Applicant lodges application according to criteria (Council or JRPP Secretariat) Council officer prepares assessment report for JRPP with recommendation File and documentation prepared for JRPP application acknowledged JRPP makes decision either adopting recommendation or varying it. JRPP commenced and meeting held. Parties heard JRPP meeting arranged - on-site - at Council Applicant may appeal to LEC Referrals - internal - external Council records on DA Register, advises parties and copy to DOP website of Determination

12. COMPLYING DEVELOPMENT Preparation: Can I get a CDC for what I want? - Apply for a Complying Development Requirements Certificate Day 1 Day7-9 Day2-6 Day10 Council Officer or Certifier: 1. Checks compliance 2. Checks no exclusion 3. Inspect site 4. Technical referrals 5. Check standard requirements * CDC (May not be refused if complies) 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. Design: Does the design comply with all CD code controls? 1. Streetscape 2. Bulk and Scale 3. Setbacks 4. Building Elements 5. Open Space 6. Garages 7. BASIX 8. BCA Prepare Complying Development Certificate - Stamp Plans Submission to Council or CD Certifier: - CD application - Checklist - Construction Plans - BASIX Certificate 1. CDC and Plans available 2. Applicant pays deposits, Home Building Levy etc., and S.94 fee 3. CDC/Plans collected Encourage applicants to talk to neighbours Encourage applicants to meet with council officer for pre-CDC Completion: Occupation Certificate issued

13. 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 Complying Development

15. 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 Implications for Artarmon

16. MAIN IMPLICATIONS FOR COUNCILS • 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) • JRPP • Appointment of Council members • Process for reporting to JRPP and Council (development over $10m)

17. MAIN IMPLICATIONS FOR COUNCILS • 3. Planning Arbitrators • Internal procedures • Council must defend decisions of Arbitrator if appealed to Court • Community information to explain new process • Decide IHAP or no IHAP • Prepare New S.94A and S.94 Contributions Plans • Change in role for Councillors away from consents • Faster turnaround times? • 8. Reduced DA revenue (CDC, PA, JRPPs).

18. 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

19. 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

20. 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

21. Planning Reforms for NSW: Dolphin or Cow