On 25 November 2022, the Environmental Planning and Assessment Regulation 2021 (NSW)
(EPA Regulation) was amended by way of the Environmental Planning and Assessment
Amendment (Miscellaneous) Regulation (No 2) 2022 (Amendment Regulation).
Summarised below are the notable changes made to the EPA Regulation.
- Owner’s consent
For development applications lodged after 1 January 2023, the Amendment Regulation requires owner’s consent to be made in writing (clause 23(1)(b) of the EPA Regulation).
This is a significant departure from the previous EPA Regulation which imposed no requirements as to the form of owner’s consent.
The importance of owner’s consent was emphasised in the case of Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245. We acted for Al Maha Pty Ltd and successfully challenged the validity of the decision by the Commissioner to grant development consent on the basis that our client had never given owner’s consent.
- Lodgment of development applications on the NSW Planning Portal
Development applications or modification applications subject of court proceedings under the now repealed Environmental Planning and Assessment Regulation 2000 (NSW) will no longer be required to use the NSW Planning Portal (Portal). The requirement to use the Portal no longer applies to applications submitted but not finally determined before 1 March 2022.
- Complying development certificate
The Amendment Regulation has replaced subsection (1) and inserted subsections (1A) and (1B) to section 129A of the EPA Regulation.
Section 129A of the EPA Regulation makes provisions concerning a design statement for industrial and business buildings under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP Code).
Previously, section 129A only applied to an application for a complying development certificate
made under Part 5 of the SEPP Code for land in Zone B5, Zone B6 and Zone B7. The new amendments expand the scope of section 129A to include Zone E3. Land that is zoned E3 is land where there are special ecological, scientific, cultural or aesthetic attributes or environmental hazards/processes that require careful consideration/management and for uses compatible with these values.
- Performance solution report
The Amendment Regulation has inserted subsection (3A) to section 137 of the EPA Regulation. Accordingly, certifiers are now prohibited from issuing a complying development certificate for development comprising internal alterations or a change of use to an existing building subject to a performance solution under the Building Code of Australia, unless the certifier has obtained or been given a ‘compliance report’ for the development.
The full amendments to the EPA Regulation, can be accessed via this link: https://legislation.nsw.gov.au/view/pdf/asmade/sl-2022-702
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
Liability limited by a scheme approved under Professional Standards Legislation.
Author: Maysaa Parrino & Ericka Pham
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