New South Wales

NSW Government unveils draft changes to ensure clarity for concept proposals

THE NSW Department of Planning and Environment last week said that proposed changes to planning legislation will ensure clarity and prevent delays in the assessment and delivery of more than $8 billion worth of development applications.

The Department of Planning and Environment's Deputy Secretary for Planning Services, Marcus Ray, said the proposed changes were necessary following the Court of Appeal's decision in relation to the Walsh Bay Arts Precinct development application.

Artist's impression of the proposed Walsh Bay Arts Precinct
Above: Artist's impression of the proposed Walsh Bay Arts Precinct / Create NSW.

The decision relates to a concept proposal by Arts NSW for a new performing arts and cultural precinct in Walsh Bay, which was assessed by the Department and approved in May 2015. The concept approval did not give consent to carry out any works.

That decision was later challenged in the Land and Environment Court (LEC) on the grounds that the Department should have considered construction-related noise impacts when assessing the concept proposal, rather than allowing the assessment to be undertaken when the development application (DA) for construction was lodged.

The challenge was unsuccessful in the LEC, which found that because the concept proposal did not seek approval for works, it was appropriate that construction-related impacts be considered at the DA stage. However, the Court of Appeal last month took a different view and found the development consent for the Walsh Bay Arts Precinct invalid on the grounds that:

  • It was not a 'staged development application' because it included a concept approval and proposed only one subsequent detailed development application (DA), instead of multiple detailed DAs; and
  • Construction-related impacts need to be considered in the assessment of a staged application.

Mr Ray said the Court's interpretation of the Environmental Planning and Assessment Act highlighted the need for a clearer definition of a 'staged development application' and to set out the level of detailed assessment needed at different stages of the application process.

"The decision affects more than $8 billion worth major local, regional and state significant development applications under assessment or recently approved," Mr Ray said.

"Our initial investigations estimate that delays because of this decision could have implications for the delivery of 14,500 homes across NSW – 9,000 in Metro Sydney and 5,500 in regional NSW.

"The Government proposes to amend the legislation so it is explicitly clear that staged development applications can include only a concept approval and a single subsequent detailed application. Construction impacts will be fully assessed before any work can start.

"This two-stage approach has become common practice in the development industry. The Government is simply making the legislation clearer to ensure the current pipeline of DAs worth $8 billion can proceed without delay.

"Staged DAs tend to be for larger, more complex projects. A concept approval makes it clear what the high-level planning limits are for a development, including its use, shape and scale, and height which provides certainty to developers, financial backers, stakeholders and the community.

"Having multiple DAs when one would suffice would create time delays and additional costs to the applicant, with no commercial, technical or community benefit."

The proposed changes to legislation will not affect the Court of Appeal's decision for the Walsh Bay Arts Precinct.

More information about the proposed changes is available from the Department of Planning and Environment website at <>. Submissions can be made until 24 July 2017.

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