A mixed bag of planning reforms – the top takeaways from the NSW EP&A Amendment Bill 2025

1. Scope of modification applications clarified: responding to the decision in Buyozo 

The Court of Appeal’s decision in Ku-Ring-Gai Council v Buyozo Pty Ltd [2021] NSWCA 177 interpreted the power to modify conditions under sections 4.55(1A), 4.55(2) and 4.56 as requiring a consent authority to approve modifications that included a change to some aspect of the approved development. For example, in order to modify a condition of consent relating to developer contributions or staging, an aspect of the approved development also had to be modified, say the landscaping component. 

This resulted in unnecessary, timely and costly modifications being sought in order to satisfy the legislative requirements.

The amendments seek to rectify this issue by incorporating a clarification provision in sections 4.55 and 4.56 which states that a consent authority is not prevented from modifying a consent merely because there is no resulting change to the development.

2. Determining the appropriate consent authority for a DA and late public submissions: Responding to the decision in Filetron 

Currently under the EP&A Act, the making of public submissions correlate to the determination of the appropriate consent authority for certain development applications (DA). For example, the Independent Planning Commission (IPC), rather than the Planning Minister (or delegate), will determine most SSD applications if:

• the relevant council or councils object to the DA; or 
• there are at least 50 submissions (other than Council) objecting to the DA; or
• there is a political donation or donations disclosure made by the applicant.

Uncertainty has arisen due to vague statutory provisions in respect of the point in time when public submissions can be taken into account when determining the appropriate consent authority for a DA. For example, should a late submission made outside the exhibition period be considered. This was highlighted in the recent decision in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41.

As a result, the amendments to Schedule 1 of the EP&A Act seek to clarify that a submission received after the exhibition period for a DA (i.e. a late submission) will not be taken into account when determining the consent authority for a DA.

The amendment does not mean that a late submission is excluded from consideration during the assessment of the DA under section 4.15 of the EP&A Act.

3. Concept plans and inconsistencies with subsequent detailed DAs

The concept plan approval framework under the EP&A Act permits approval of the initial concept or masterplan development for a site, including building envelopes, staging, heights etc. (Concept Consent). Following grant of the Concept Consent, detailed DAs must be approved in order to progress the development. Those detailed DAs must align with the original Concept Consent.

The Court recently considered the management of inconsistencies between the Concept Consent and subsequent detailed DAs in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24. While a positive outcome in that Court decision, the amendments seek to emulate the Court decision by clarifying that a consent authority has power, under sections 4.17(1)(b) and (5) of the EP&A Act, to impose conditions requiring the modification or surrender of a Concept Consent when assessing subsequent detailed DAs. 

This amendment:

• provides certainty to proponents of Concept Consents of evolving masterplan developments; and 
• removes any costs or time impediments associated with the requirement for a modification application to be progressed for a Concept Consent at the same time as a detailed DA.

4. IPC oversight removed where HDA makes a recommendation on SSD

The Minister is no longer required to obtain and publish advice from the IPC before making a declaration that a residential development is SSD. This removes duplication and timing barriers to the HDA recommendation and Ministerial declaration process for residential development that meets the relevant capital investment value (CIV) thresholds and planning criteria for the SSD pathway. 

5. HDA meeting efficiencies

To ensure that the HDA becomes an agile and efficient advisory body to the Planning Minister, amendments seek to remove some of the meeting formalities associated with public hearing style forums, such as the hearing of evidence. It is intended that the HDA will meet monthly or at short notice and records of those meetings will be published around the expressions of interest submissions, the HDA recommendations, advice and reasons. 

6. Minimum public exhibition period for residential SSD reduced to 14 days

In order to reduce delays and facilitate faster delivery of housing projects, the minimum public exhibition period for specific residential SSD developments will be reduced from a minimum of 28 days to 14 days. These include:

• SSD residential developments declared by the Minister following a recommendation by the HDA;
• housing developments carried out under Schedule 1 of the State Environmental Planning Policy (Planning Systems) 2021 (Planning Systems SEPP) by certain public authorities, infill housing affordable housing projects, build-to-rent housing projects and seniors housing projects; and
• any accelerated transport oriented development (TOD) precincts developments with a residential accommodation component and listed under schedule 2 of clause 19 of the Planning Systems SEPP. 

As the change is to the minimum exhibition period, the amendments will not prevent longer exhibition periods being required in appropriate circumstances.

7. Affordable housing contributions

The amendments to Part 7 ‘Infrastructure contributions and finance’ of the EP&A Act seek to clarify when an affordable housing contribution can be imposed. Specifically, an affordable housing contribution condition can be imposed if:

• a State environmental planning policy identifies a need for affordable housing in a specific area and the condition is authorised by either:
  • a local environmental plan through an affordable housing contributions plan; or
  • a state environmental planning policy through a contributions scheme. 

This amendment will apply retrospectively to 1 March 2018 resolving uncertainties about existing provisions in the State Environmental Planning Policy (Housing) 2021 that address the loss of low-cost rental housing; and

• the condition requires a reasonable dedication or contribution having regard to any other dedications or contributions required to be made by the applicant.

In addition, the amendments seek to provide certainty that affordable housing financial contributions collected from developers are to be reinvested in the local government area where they were collected or in an adjacent area.

8. Declaration of housing targets for revised regions

Following the repeal of the Greater Cities Commission Act 2022  last year, strategic planning powers were transferred to the Planning Minister and Planning Secretary. Under the proposed changes, all regional boundaries, including for Greater Sydney, will be declared by Ministerial Order. 

Once the new regional boundaries are declared, the amendments to the EP&A Act will allow the Planning Minister to declare housing targets for regions and local government areas and the period within which the target is to be achieved. The Planning Secretary may, but is not obliged, to include these targets in a draft regional strategic plan.

While only a terminology change to the proposed amendments, it is important to emphasise that as part of the strategic planning framework, all councils must implement any district and regional strategic plans once made by carrying out a review of their local environmental plans and preparing planning proposals to give effect to the plans.