Written by Michelle Astridge, Michael Causer & Kate Dean.
The NSW Department of Planning, Industry and Environment have released new guidelines which govern how developers are to prepare planning proposals.
The Local Environmental Plan Making Guidelines (Guidelines) came into effect on 15 December 2021 and apply to all new planning proposals. The aim of the new Guidelines is to help streamline the NSW Local Environmental Plan (LEP) making process with the aim of reducing the average end-to-end processing times by 33%[1].
The Guidelines are accessible on the Department’s website (here) and introduce the following reform:
- Classification of planning proposals: All new planning proposals are classified into 4 categories:
- Basic – e.g., minor amendments such as correcting administrative errors;
- Standard – e.g., amendments that relate to altering controls that are consistent with current strategic planning for the site;
- Complex – e.g., amendments that may not be wholly consistent with the existing strategic planning or relate to a change that would result in a significant increase in demand for infrastructure; and
- Principal – e.g., creation of a new LEP.
- Benchmark timeframes: The Guidelines contain benchmark timeframes in each stage of the LEP making process, depending on whether the planning proposal is categorised as ‘Basic’, ‘Standard’, ‘Complex’, or ‘Principal’. Standard and Complex applications are expected to take 320 and 420 days respectively. These timeframes do not include the pre-lodgement stage which the Guidelines anticipate can take from 30-60 days.
- Pre-lodgement engagement: With a view to early engagement and consultation with key authorities, a new pre-lodgement stage has been included as a first step in the LEP making process for standard and complex planning proposals.
The pre-lodgement stage includes the submission of a scoping proposal and a request for a pre-lodgement meeting. The authority is also encouraged to consult with external authorities and agencies for initial comment and within 10 working days of the pre-lodgement meeting, provide written advice to the proponent on the proposal.
Unlike the processing of planning proposals, which since 1 July 2021, have been submitted, assessed and determined with real time updated via the NSW Planning Portal, the pre-lodgement stage is directly with the authority.
The Department has released templates for the scoping proposal and checklists to assist in this pre-lodgement stage. These are available as annexures to the Guidelines.
- Extension of timeframe to trigger rezoning review for complex planning proposals: If no decision is made on a complex planning proposal within 115 days, the proponent may request a rezoning review. The current 90-day period remains the same for all other types of planning proposals.
- Planning Proposal Authority (PPA) role to be assumed by planning panel upon successful rezoning review: If a planning panel carries out a rezoning review of a planning proposal (which is not supported by Council) and recommends that it proceed to Gateway determination, the planning panel may appoint itself as the PPA (unless Council elects to accept the PPA role).
- Planning panel can recommend alterations and/or Gateway conditions: If a planning panel finds that a planning proposal has strategic merit, it may recommend alterations / conditions to the Gateway determination or minor changes to the planning proposal.
Rezoning Discussion Paper
In addition to the release of the Guidelines, DPIE are currently exhibiting a discussion paper on a new approach to rezonings for feedback.
The Discussion Paper suggests a new approach for rezonings which seeks to align the rezoning process more closely to what developers experience through the development application process. The major amendments suggested include:
- making the currently optional pre-lodgement scoping phase a mandatory process;
- streamlining the assessment of planning proposals by removing the gateway determination process and placing all merit assessment processes to after the exhibition of the planning proposal;
- exhibition of planning proposals are to occur as soon as possible after lodgement;
- recognising proponent-initiated planning proposals and allowing Council to assess and determine those applications;
- consideration of a planning guarantee which incentivises Council to determine applications within set timeframes otherwise a percentage or component of the application fee will be refunded; and
- the introduction of a merit right of appeal for in the circumstances where the rezoning authority decides not to make the plan.
DPIE have said that it is their intention for the new approach to start later this year.
The Discussion Paper is on exhibition until 28 February 2022 and is available here.
[1] As at 30 June 2021, the average end-to-end processing times were 89 weeks, down from an average of 114 weeks in 2019.
