The NSW Department of Planning, Industry and Environment (“Department”) has adopted a ‘Planning Reform Action Plan’ (“Action Plan”). The Action Plan introduces numerous changes including a new class of merit-based appeals in the Land and Environment Court for planning proposals (including rezoning applications).
A planning proposal is required to change the Local Environmental Plan applying to land and is assessed on merit and must include relevant environmental, social, economic and other site-specific considerations. A planning proposal may include a rezoning application under Part 3 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
Rezoning under the current planning system
The desire to rezone land is often an attractive option for the applicant and can increase the range of permissible uses of land, for example, from a commercial use to a residential use.
All rezoning applications (which generally require amending the applicable environmental planning instrument) are assessed on merit; have regard to the individual characteristics of the subject land and consider whether:
- the rezoning application is consistent with State and Local Government planning objectives and has positive benefits in terms of housing supply, housing affordability or employment; and
- the land cannot be reasonably developed or used under the existing zoning; and
- the development of the land under the current zone is not in the public interest.
The Department estimates that it currently takes approximately 579 days to progress a rezoning application.
Importantly (and unlike development applications), there is no right of appeal and limited opportunities to review rezoning applications under the EPA Act. The applicant may only request a review (known as a ‘pre-Gateway review’) when the relevant local council has determined not to support the rezoning application, or has failed to make a decision within 90 days of lodgment.
Rezoning under the Action Plan
It is expected that amendments will occur shortly to the Land and Environment Court Act 1979 (NSW) and the EPA Act for the purpose of enlivening the Action Plan.
Notwithstanding that the applicable legislation is not yet available, the Department provides that the following matters will be considered during the development of the anticipated legislative reforms:
- how to accelerate rezoning outcomes;
- mechanisms to provide for conciliation and adjudication to assess and progress planning proposals;
- establishing new performance measures for planning proposals; and
- increasing accountability for local councils and the Department to process planning proposals promptly.
On the basis that rezoning applications require Council’s support, and that such applications are assessed on merit, one can reasonably expect that the anticipated rezoning appeals will be heard and disposed of in a similar manner as the current ‘Class 1 appeals’ in the NSW Land and Environment Court.
As with any legislative reform, changes to legislation is a timely (and often uncertain) process. However, in accordance with the Action Plan, the Department vows to have these reforms in place by mid-2021, whilst following the standard processes for these changes, including public exhibition.
In gearing up for the appeal reforms, the Action Plan originally proposed the appointment of two new commissioners. However, on 6 November 2020, the NSW Land and Environment Court announced the appointment of 5 new commissioners. Not only will this boost the role of the Land and Environment Court in our planning system, but this is also proposed to allow up to approximately 75 more matters to be considered each year.
Other Action Plan changes – fast-tracking assessments
A further prominent change, amongst the sweep of changes proposed by the Department’s Action Plan, includes the ‘Faster Assessments Program’ which seeks to combine new resources, improved case management and system improvements with the view of significantly reducing assessment times by June 2023.
These changes will include:
- rezoning decisions cut by 191 days (33% time savings) with the view of being done in six, rather than 18 months;
- decisions on development applications for larger, regionally significant projects reduced by 91 days (a 25% time saving); and
- decisions on major state significant projects reduced by 20 days (a 17% time savings).
These changes should benefit development outcomes including:
- reduced developer holding costs;
- reduced business compliance costs in preparing reports for rezoning applications;
- increased certainty and transparency in decision-making;
- unlocking the NSW housing supply quickly;
- less time spent navigating the NSW planning system.
The Faster Assessments Program will be supported by the Department’s Planning Delivery Unit (“PDU”) which is a new central escalation point available to councils and applicants.
Further information will be provided as the Department’s Action Plan develops. Please contact us if you would like further information about how these changes may impact you.
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.