17 January 2017 Environmental Planning and Assessment Amendment Bill

By Colin McFadzean, Special Counsel

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.


  • 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.

Colin McFadzean, Special Counsel  |  Phone: +61 2 9233 5544  |  Email:

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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