Local Government Legal

Local Government Legal prepares a regular email newsletter with legal updates on relevant court judgements and a summary and analysis of legislative changes.

November 2012 – EP&A Act Amendments

A Bill to amend the EP&A Act has been introduced into Parliament.  The Amendment Bill states its main objective as being to remove impediments to the supply of housing.  The proposed amendments are as follows:

Development Control Plans

The Explanatory Memorandum states that the Bill clarifies the purpose, status and content of DCPs and how they are to be taken into account during the development assessment process.

Councils are currently allowed to draft DCPs to “make more detailed provision with respect to development to achieve the purpose of environmental planning instruments (“EPIs”) applying to the land”.  The bill provides that the principal purpose of a DCP is to provide guidance (and not statutory requirements) to the persons proposing to carry out development and to the consent authority on the following matters:

(a) giving effect to the aims of any EPI that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

Currently, section 74C(5) of the EP&A Act provides that a DCP is of no effect if it is inconsistent with a provision of an EPI.  The amendments propose to expand this position as follows:

“A provision of a development control plan…has no effect to the extent that:

(a) it is the same on substantially the same as the provision of an environmental planning instrument applying to the land;

(b) it is inconsistent or incompatible with a provision of any such instrument or its application prevents compliance with a provision of any such instrument; or

(c) it has the practical effect of preventing or unreasonably restricting development that is otherwise permissible under any such instrument and that complies with the development standards in any such instrument.”

The proposed amendments to section 79C(3A) clarifies how DCPs are to be taken into account during the development assessment process. In particular, to ensure that they are given less weight and significance than EPIs and that they are applied flexibly so as to allow alternative solutions to how permissible development may be carried out. A consent authority in applying a DCP “is not to have regard to how those provisions have been applied previously or might be applied in future”.

Building Certification

The bill strengthens the building certification regime by:

  • mandating written contracts for certification work;
  • allowing the board to require an accredited certifier to undertake a specific type of assessment and to impose new conditions on or vary existing conditions of the certifier’s accreditation or to otherwise suspend or cancel the accreditation in response to the assessment;
  • requiring the board and the tribunal to consider previous disciplinary action when considering penalties for a finding of unsatisfactory professional conduct or professional misconduct;
  • allowing the board to require an old principal certifying authority [PCA] to provide prescribed information to a new principal certifying authority;
  • allowing councils to better recover the costs of issuing orders under the Environmental Planning and Assessment Act;
  • enabling compliance certificates to be issued by prescribed persons, in addition to accredited certifiers; and allowing these prescribed persons to certify both the design and installation of building components.

The bill also makes other amendments:

  • Copyright indemnity: the Bill extends the regulation-making power to provide for a statutory indemnification against possible copyright breaches of documents submitted by persons who do not have copyright where the documents are publicly notified or made use of under the Act,
  • Paper Subdivisions: the proposed amendments extend the existing uncommenced paper subdivision provisions in the EP&A Act so as to allow the costs of all works associated with finalising a development plan for a paper subdivision to be recovered by the authority delivering the development, such as the costs of preparing reports, amounts of any levies, fees or other charges applicable to the proposed subdivision or subdivision works, and administrative costs, in addition to roads, water and electricity.
  • Residential Development on Bush Fire Prone Land: The bill removes the need to re-assess bushfire issues at the building stage where those issues have been assessed at the subdivision stage under the Rural Fires Act, but only if the true bushfire risk status of the land does not warrant such re-assessment.

Note:  This information is not to be relied upon as legal advice.

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