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ENVIRONMENTAL PLANNING AND ASSESSMENT BILL 2006
It is an important Bill for local government, developers and development corporations such as the Honeysuckle Development Corporation. The Bill proposes a number of significant amendments to the Environmental Planning and Assessment Act 1979.
Effects of the proposed amendments
The effect of those proposed amendments can be summarised as follows:
Empowers the Minister to direct a Council to approve, amend or repeal a contributions plan, and if the Minister does so there is no right of appeal against any resulting plan or amended plan or the reasonableness of any condition imposed under any resulting plan (proposed s.94EAA)
Empowers the Minister to direct, subject to any relevant Regulation, a Council to make, amend or revoke a DCP. If the Council fails to comply with the direction the Minister can make, amend or revoke the DCP and he is not bound by the Regulations in doing so (proposed s.74F)
Amends s.117 of the Act so that each Council is required to provide the Minister, as and when the Minister directs, with reports (containing the information the Minister directs) on relation to the Council’s performance in planning and development matters (proposed 117(2)(c))
Permits the Minister to appoint a Planning Administrator (“PA”) or Planning Panel (“PP”) in certain circumstances, after consulting with the Minister for Local Government. Those circumstances include if the Minister is of the OPINION that the Council has “failed to comply with tis obligations under the planning legislation” or “that the performance of the Council in dealing with planning and development matters…is unsatisfactory” (and this can include time taken). The Minister may appoint the PA/PP to exercise any or all functions of a Council under Part 3 or Part 4 of the EP&A Act (see proposed s.118).
Once appointed, the PA/PP exercises the appointed functions of Council to the exclusion of Council, and Council is to pay for the renumeration, costs and expenses of the PA/PP from its Consolidated Fund (although there is a power for the Minster to exempt the Council from some or all of the burden of meeting that requirement) – see proposed s.118AB and 118AC. The Council is required to assist the PA/PP, and there is an offence for councillors or staff of a Council that obstruct the PA/PP (proposed s.118AD).
Establishes “Special Infrastructure contributions” under proposed Part 4, Division 6, Subdivision 4. The Minister is empowered to determine the level and nature of developer contributions to be imposed for development or classes of development within a “special contributions area”, and there is no right of appeal from that determination (proposed s.94EE). The Minister is also empowered to direct a consent a consent authority to impose a condition (in accordance with the Minister’s determination” on consent issued by the consent authority for land within that “special contributions area”, from which there is no right of appeal and which can not be modified without the approval of the Minister (proposed s.94EF). It is proposed that all “growth centres”, as defined for the purposes of the Growth Centres (Development Corporations) Act 1974), will be “special contributions areas, although the Minister can vary that by order (proposed s.94EG and proposed Schedule 5A).
Empowers the Minister to direct a consent authority to sell or transfer to a public authority any land the consent authority receives as a “special infrastructure contribution” and which is to provide, or has provided, infrastructure that relates to certain development (proposed s.94EH).
Establishes the “Special Contributions Infrastructure Fund” under proposed Part 4, Division 6, Subdivision 5 of the EP&A Act. The Fund is to include all monetary contributions received under a “Special Infrastructure contributions” condition, proceeds of sale of land that results from a direction from the Minister under (proposed) s.94EH, money contributed by the NSW government, proceeds of investment from the Fund and other prescribed sources (proposed s.94EK). Fund monies can be applied to administration costs, payments to public authorities for the provision of infrastructure and other prescribed uses (proposed s.94EL).
Prevents consent authorities from imposing s.94A fixed development consent levies on land within a special contributions area without the approval of the Minister or a development corporation designated by the Minister to give such approval (proposed s.94A(2A)).
Prevents consent authorities from entering into planning agreements that seek to exclude the application of s.94EF (which relates to Special Infrastructure Contributions) without the approval of the Minister or a development corporation designated by the Minister to give such approval (proposed s.93F(5A)).
Provides that contributions plans do not authorise the imposition of a condition under s.94 that relates, in whole or in part, to infrastructure provided by a special infrastructure contribution (proposed s.94EA(2A)).
Requires each Council to provide the Minister with a copy of a contributions plan “as soon as practicable” of approving that plan (proposed s.94EA).
Summary
In summary, the proposed amendments to the EP&A Act can be said to vest control of development contributions within prescribed areas with the Minister, and to provide the Minister with a fairly big stick to hit Councils with if they fail to meet his expectations of the exercise of their functions as consent authorities.
Overall not a great Bill for local government but one which developers might rejoice – depending on the approach to be adopted by the Minister.
The Bill also provides for minor amendments of the Growth Centres (Development Corporations) Act 1974 and the Redfern-Waterloo Authority Act 2004.
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