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Lost in transition – consolidation of State Environmental Planning Policies may cause problems

14 February 2022

#Planning, Environment & Sustainability

Lost in transition – consolidation of State Environmental Planning Policies may cause problems

From 1 March 2022, 11 State Environmental Planning Policies (SEPPs) will repeal 45 existing SEPPs and former Regional Environmental Plans (now deemed SEPP) in a reform aimed at driving greater ‘transparency and certainty’ in the NSW planning system.

However, while the idea of consolidating and reducing the number of SEPPs that apply is laudable, the approach falls short of its potential.

In this article, we consider some of the missed opportunities for improvement within the proposed consolidation and identify a number of issues that may arise because of the adopted approach.

The proposed approach

Under the proposed approach existing SEPPs will be repealed and replaced by a smaller number of SEPPs dealing with specified topics. Practically, each of the existing SEPPs will become separate chapters in the consolidated SEPP.

For example, State Environmental Planning Policy (State and Regional Development) 2011, State Environmental Planning Policy (Aboriginal Land) 2019 and State Environmental Planning Policy (Concurrences and Consents) 2018 will become chapters 2, 3 and 4, respectively, of State Environmental Planning Policy (Planning Systems) 2021.

Problems with the proposed approach

We have identified a number of problems with the proposed approach that potentially make the planning system more difficult to navigate for practitioners, land owners and consent authorities.

The risk here is that the benefits of the reform will be lost in transition.

Retention of outdated agency references and section numbering

A consolidation such as this is a great opportunity for ‘housekeeping’ amendments to ensure references to agencies and legislative references are current. Unfortunately, the indicative consolidated instruments do not do this and there has been nothing done by way of statute revision to update superseded references in the repealed SEPPs.

For example, chapter 5 of the indicative State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Indicative Biodiversity and Conservation SEPP) refers to the Department of Water Resources (DWR). The DWR was abolished on 6 April 1995, with its branches subsumed into the Department of Land and Water Conservation. There have been at least five agency name changes to the relevant departments since DWR was abolished.

Similarly, clause 9.7 of the Indicative Biodiversity and Conservation SEPP makes reference to section 90 of the Environmental Planning and Assessment Act 1979 (EPA Act). Section 90 became section 79C on 1 July 1998, and was then re-numbered to the current section 4.15 on 1 March 2018.

Not only are these legacy issues perpetuated, but the indicative SEPPs also contain references to the SEPPs repealed as part of the consolidation of SEPPs.

References such as these to superseded agencies and legislative provisions create a minefield for those reading and interpreting the SEPPs, particularly for the layperson who may lack familiarity with the legislative history of the EPA Act, or how references to obsolete provisions or agencies are to be interpreted (see for example section 68 Interpretation Act 1987 (NSW)).

Inconsistencies between chapters within the SEPPs

A flow-on effect from the way in which the SEPPs have been consolidated is unnecessary complexity in how they are read. For example, the indicative Biodiversity and Conservation SEPP has four dictionaries, each relating to a separate chapter. This results in:

  • duplication of defined terms, including “the Act” and “development”
  • conflicting definitions within a single instrument, for example, in chapter 10, wetlands means “natural or non-natural wetlands (including marshes, sedgelands, wet meadows, salt marshes, mudflats, mangroves and seagrasses) that form a shallow water body when inundated (cyclically, intermittently or permanently) with fresh, brackish or salt water”, whereas in chapters 9 or 11, wetlands means an area with characteristics of both terrestrial and aquatic environments that is flooded or waterlogged often enough to support aquatic or other plants typical of areas with those characteristics.

While the indicative consolidated SEPPs that have been published retain provisions regarding the relationship of each chapter to other environmental planning instruments, the provisions are silent on what to do in the case of inconsistency between chapters within one of the new SEPPs. It is to be seen whether the full suite of SEPPs, once commenced, will cover off on the relationship between chapters and SEPPs, particularly in circumstances where all of the new SEPPs will share the same commencement date (see section 3.28 of the EPA Act).

Potential for complications to due diligence

The consolidation may also complicate the way in which planning certificates issued under section 10.7 of the EPA Act are used.

Planning certificates are required to name each environmental planning instrument that applies to the carrying out of development on the land (see Schedule 4, clause 1(1) of EPA Regulation 2000). Where previously a certificate would list specific SEPPs applicable to the land, the consolidation of the SEPPs into ‘focus areas’ may result in planning certificates that provide less clarity as to the matters effecting a parcel of land. 

For example, a reference to the Biodiversity and Conservation SEPP could mean that the land is affected by the provisions regarding koalas, non-rural vegetation, Sydney Drinking Water Catchment or any of the regional environmental plans now subsumed into the Biodiversity and Conservation SEPP. Therefore, in carrying out due diligence on the land, the interested party, or their representative, will now have to look into the consolidated instrument to discern which chapters apply to the land.

Increased reliance on the Interpretation Act 1987

While SEPPs are environmental planning instruments (EPI) and EPIs are ‘instruments’ within the meaning of the Interpretation Act 1987 (NSW) (Interpretation Act) and certain provisions that apply to statutory rules (see section 6(6) of the Interpretation Act) also apply to environmental planning instruments, the approach adopted fairly consistently since the introduction of the EPA Act is to have savings and transitional arrangements in the EPI itself.

However, the approach adopted here is different. Consolidated SEPPs do not propose incorporating the savings and transitional provisions contained in the preceding SEPPs. Rather, the new instruments rely on section 30(2)(d) of the Interpretation Act, which preserves the savings or transitional provisions contained in repealed statutory rules.

In practice, this means that the consolidated SEPPs cannot be read as standalone instruments. Rather, practitioners will need to consider not only the consolidated SEPPs, but also whether there are any accrued rights, privileges, obligations or liability under the savings and transitional provisions of the repealed SEPPs which will no longer be found in the “In Force” section of the NSW legislation website.

This approach does not provide further transparency or certainty in the application of these instruments.

Reliance is also placed on section 30A of the Interpretation Act for the proposition that the transfer of a provision does not affect the operation or meaning of the provision, and the transferred provisions are to be construed as if they had not been transferred. The section also applies to statutory rules, and was not intended under the Interpretation Act to apply by extension to environmental planning instruments but has been applied here by express provision in the SEPPs themselves (see section 5(6) of the Interpretation Act).

The provision in the consolidated SEPPs that repeal the earlier SEPPs are self-repealing in the sense that the relevant schedules automatically repeal themselves on 2 March 2022.[1] That means that it will not be possible to see what SEPPs they repealed by reading the consolidated SEPPs. Instead, they would need to look on the ‘As Made’ section of the NSW legislation website.

Finally, the central question everyone asks when a new SEPP is made is whether the new SEPP has any bearing on development applications made but not finally determined before making the new SEPP. Generally, the position is that absent any savings or transitional provisions, a development application must be determined on the basis of the law as it stands on the date of determination, not the date of lodgement.[2] Here, we feel that without an express savings and transitional arrangement in the SEPP itself, that question will have to be answered by reference to whether the applicant has an accrued right under a repealed SEPP. Such cases are complex and many have not been successful.[3]

Conclusion

The approach adopted potentially negates many of the benefits that could come from rationalising and consolidating SEPPs. The approach also gives rise to a number of legal and practical problems for practitioners navigating the transition up to and after 1 March 2022.

There is still some time for the consolidation of the SEPPs to be finessed ahead of the projected 1 March 2022 commencement date. However, in the absence of any amendments to address the above idiosyncrasies, we anticipate a number of teething issues as NSW moves to the consolidated SEPPs.

If you have any questions or need assistance regarding the consolidated SEPPs (or rights accrued under the repealed SEPPs), please contact us or send us your enquiry here.

Authors: Peter Holt & Katharine Huxley

[1] See for example Schedule 7, clause 6 State Environmental Planning Policy (Planning Systems) 2021; Schedule 14, clause 14 State Environmental Planning Policy (Biodiversity and Conservation) 2021; Schedule 3, clause 6 State Environmental Planning Policy (Resilience and Hazards) 2021.
[2] Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; Nalor Pty Ltd v Bankstown City Council (1980) 42 LGRA 111.
[3] For example, Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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