Draft Development Application Guidelines Released, Altering The System Of Development Application Assessment In NSW

Although much of the State Government's planning reform package has now been rolled out, the promised changes to the development application (DA) assessment system – the bread and butter of the reform package – seemed to have been left behind. However 'Draft DA Assessment Guidelines' were recently released, which will significantly affect the processes and timeframes applicable to DAs (and related Land and Environment Court appeals) in NSW. They also explain exactly what information a DA must now contain. Timeframes to lodge appeals in NSW will also be slashed.

Landowners, developers, councils, architects, planners and development consultants will need to be across these new processes when they commence.

Draft DA Guidelines – what's new?

The Department of Planning has released a series of documents with 180 pages of detail on the proposed changes to the system of DA preparation and DA assessment in NSW. The aims, it says, are to create a "customer focussed and easily navigated" planning system, "identifying opportunities to remove red tape", "provide greater certainty of timeframes", and moreover to "facilitate cultural change and a "can do attitude". However with 180 pages of material to waffle through, the new system is hardly off to a good start in terms of achieving these aims.

The Guidelines relate only to the reforms to DA assessment. For information on other aspects of the planning reforms introduced over the past 18 months, please see our previous newsletters on our website here.

The key features of the Draft DA Guidelines, as we see them, are:

• Complicated new timeframes for DA assessment and "deemed refusal" appeal rights. Presently, councils typically have 40 days to determine the DA, after which the application is deemed to be refused, enabling the applicant to appeal to the Land and Environment Court. The new scheme will remove the 40 day period, and instead the time limit will be either 50, 70, or 90 calendar days, plus an additional 9 days (in all cases), but the real difficulty will be in working out which timeframe applies to your DA. This will actually depend on understanding the public notification requirements for the DA, as follows:

• In relation to "deemed refusal" dates, it is crucial to bear in mind that appeal rights in all cases will be limited to only 3 months after a DA is either refused or "deemed" to be refused. As such, once an appeal is deemed to be refused (whether it be 50, 70 or 90 days after the DA was lodged), it may then be necessary to lodge an appeal within the next 3 months - after which the applicant will be out of time to commence a deemed refusal appeal, and will then have to patiently wait for however long the Council chooses to take to actually determine the DA. As such, this may actually encourage litigation, by forcing applicants to commence any appeals reasonably early.
• The Guidelines formalise the process of 'pre-DA meetings' between the applicant and Council, and go so far as to suggest that Councils may effectively mandate that pre-DA meetings must occur for certain developments (i.e. where there is a non-compliance with some planning controls) by including such a requirement in a DCP. However, to counter the current situation where many councils only provide pre-DA advice on a "without prejudice" and "non-binding" basis, and subsequently refuse to abide by their own advice, the Guidelines instead suggest that pre-DA meetings should be fully minuted and that the minutes be issued to an applicant within 2 weeks. Similarly and sensibly, there should be "consistency between the advice given at a pre-DA meeting and the criteria applied once the DA is lodged."
• The Guidelines pedantically outline the matters that must be included in a Statement of Environmental Effects (SEE) and the other documents and information that must accompany a DA. Part B of the Guidelines explains in great detail how an SEE must be set out. The SEE is to be divided into 5 parts, which are detailed in the Guidelines and which we can advise further on, upon request. It seems to us that these requirements will almost certainly add to the costs of the preparation of DAs in most cases. Importantly, these requirements will be mandatory (by virtue of clause 105 of the Regulations), therefore a SEE which does not meet these requirements may cause the DA to be rejected by the Council or indeed may arguably cause a DA to be invalidated in court proceedings brought by an objector or third party. Town planners and architects beware!
• In a case of typically confusing language, councils will be entitled to "reject" a DA as being 'grossly inadequate' within the first 7 days of receiving it, although the 7 day period is in fact defined to mean the first 9 days. An application may be classified as 'grossly inadequate' where it would probably (in council's view) take the applicant more than 21 days to rectify it (a very vague and subjective test). If an application is not rejected within that first 9 days, the Council must then write to the applicant to formally "accept" the application, but the Council may then nevertheless request more information within the next 14 days. Good luck to those needing to work their way through this minefield.
• The deemed refusal appeal periods referred to earlier (above) only commence once the DA is formally "accepted" by the council. This therefore adds about another 9 days to the applicable deemed refusal periods. Calculators and calendars will no doubt come in very handy in working out these convoluted appeal periods. However, councils will be required to work out and explain the relevant deemed refusal period to applicants early in the process.
• DAs need to be publicly notified or advertised for public comment "as soon as practicable" after a DA is "accepted" by Council. Importantly, the matters raised by objectors will be forwarded to the applicant to enable the applicant to respond and, where an applicant amends the DA to "specifically address submissions", the amended plans will be assessed and "will not necessarily be re-exhibited". In short, this gives applicants a chance to amend their plans in response to public comments, without further delaying the DA by having to show the new plans to the public for further comment. This will be welcome news to developers. However if this is at the discretion of the council, as appears to be the case, then we expect that most councils will continue to require amended plans to be re-exhibited, in order to avoid public criticism.
• A sensible and important feature of the Guidelines is that they encourage councils to impose conditions of consent where possible, rather than putting applicants through "the time and expense of preparing additional documentation, plans and reports" to address issues. This should speed up the approval process. In addition, Councils are to provide draft conditions to applicants in advance, for review by the applicant, in order to avoid the need for subsequent section 96 modification applications to fix or amend silly conditions of consent.
• Similarly, the Guidelines place emphasis on "negotiating better outcomes", going so far as to say that applicants should be encouraged to respond to matters raised by the public and encouraged to propose amendments to their DAs. Unfortunately this forgets the fact that the Regulations actually prevent applicants from amending their DAs unless the relevant council expressly allows them to. This could easily have been improved by amending the Regulations to allow an applicant to amend its application, whether or not the council consents to that amendment.
• The Guidelines state that once a DA is determined by council, an applicant has 12 months to appeal to the Land and Environment Court. However this will soon be incorrect, as recent amendments to the Act mean that an applicant will soon only have 3 months to appeal.
• Development Consents issued by councils have a lapsing date of anywhere between 2 years and 5 years from the date when the consent was granted. This means the consent lapses if it has not been activated within that time. The Guidelines now sensibly encourage councils to issue consents having "the full 5 year term", to give the developer sufficient time to obtain finance and pre-committed tenants or purchasers, and the like.
• Section 96 modification applications will have their own set of "deemed refusal" time periods, depending on the nature and scope of the modifications sought. The time periods range from 50 to 70 days.

In speaking with the Department of Planning this week, the Department advised that although they had hoped to have these Guidelines and the accompanying Regulations in place by mid 2009, the timing is now more likely to be the end of 2009.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.