Envi­ron­men­tal Plan­ning and Assess­ment Amend­ment Bill

The State Gov­ern­ment has released the Envi­ron­men­tal Plan­ning and Assess­ment Amend­ment Bill 2017.

The Bill is on pub­lic exhi­bi­tion until 10 March 2017.

Pro­posed amend­ments of note include:

Devel­op­ment Applications

• The require­ment to give rea­sons why a DA was deter­mined the way it was. The rea­sons are designed to inform the com­mu­ni­ty as to how their sub­mis­sions were con­sid­ered and to high­light impor­tant con­sid­er­a­tions made dur­ing the deter­mi­na­tion. The rea­sons must be con­sid­ered in lat­er mod­i­fi­ca­tion applications.

• Sec­tion 96 mod­i­fi­ca­tion appli­ca­tions will no longer be able to ret­ro­spec­tive­ly approve unau­tho­rised works. This pre­sum­ably will lead to a greater use of Build­ing Cer­tifi­cate appli­ca­tions when works as con­struct­ed dif­fer from approved DA plans.

• Expand­ing the scope of DA deter­mi­na­tions that can be reviewed to include inte­grat­ed development.

• Giv­ing the Min­is­ter pow­ers to del­e­gate DA deci­sion mak­ing to Coun­cil staff (as opposed to Coun­cil­lors) and to direct a Coun­cil to cre­ate a local plan­ning pan­el (such an as IHAP).

• The abil­i­ty for DA con­di­tions on state sig­nif­i­cant devel­op­ment to lapse and trans­fer across to EPA licences. Enforce­ment action would then rest with the licence.

• Strength­en­ing require­ments for a CC to be con­sis­tent with a DA.

Com­ply­ing Development

• Per­mit­ting the Land and Envi­ron­ment Court to inval­i­date CDCs when the Court deter­mines pre­scribed cri­te­ria was not sat­is­fied. This dif­fers from cur­rent case law which lim­its the Court’s inva­lid­i­ty dec­la­ra­tion pow­ers accord­ing to whether the Cer­ti­fier’s state of sat­is­fac­tion could have been reached by a rea­son­able person.

• Allow­ing the Reg­u­la­tion to require cer­ti­fiers to give a copy of a pro­posed CDC and a CDC deter­mi­na­tion, includ­ing approved plans, to neigh­bours and the Council.

• Allow­ing the Reg­u­la­tion to lim­it nom­i­nate cer­tain types of CDC which may only be issued by a Coun­cil (as opposed to a pri­vate cer­ti­fi­er). The CDC types have not yet been nominated.

• Allow­ing the Reg­u­la­tion to per­mit Coun­cil offi­cers to sus­pend the car­ry­ing out works under a CDC for up to 7 days while they inves­ti­gate com­pli­ance with applic­a­ble stan­dards. A reg­u­la­tion may also be devel­oped to charge a levy on CDCs to fund Coun­cil inves­ti­ga­tion work.

• Per­mit­ting deferred com­mence­ment CDCs to be issued. The intent behind this is to allow CDCs to be issued on unreg­is­tered lots with the cer­tifi­cate not oper­a­tional until such time as the lot is registered.

Strate­gic Planning

• The need to cre­ate a Local Strate­gic Plan­ning State­ment that bridges the gap between region­al and dis­trict plans pro­duced by the State Gov­ern­ment and LEPs pre­pared for each Coun­cil area. The State­ment is to set out the strate­gic con­text and ratio­nale for a Coun­cil’s LEP and DCP and will be a manda­to­ry con­sid­er­a­tion when prepar­ing any plan­ning pro­pos­al to amend the LEP.

• Under­tak­ing ​“LEP checks” every 5 years fol­low­ing from which the Depart­ment will set actions which may include putting for­ward plan­ning pro­pos­als or per­form­ing a full LEP review.

• Allow­ing the Reg­u­la­tion to require that DCPs be pre­pared to a stan­dard for­mat. The stan­dard for­mat has not yet been established.

Con­sul­ta­tion

• Coun­cils must have a plan for Com­mu­ni­ty Participation.

• Allow­ing the Reg­u­la­tion to encour­age or require pub­lic con­sul­ta­tion before the lodge­ment for DAs for major devel­op­ment. What com­pris­es major devel­op­ment has not been specified.