New South Wales Planning Quarterly

This article was co-authored with Phoebe Saxon and Tiffany Austin.

This is the latest in a series of quarterly updates from the NSW Environment and Planning team and provides a snapshot of the key updates and upcoming legislative and policy changes in this practice area. You can find our previous instalment here. This issue covers:

• Updates to the NSW Government's Transport Oriented Development program;
• NSW Government's declaration of an additional six renewable energy projects as Critical State Significant Infrastructure;
• Release of the NSW Government's 'Plan for Nature' response to the statutory reviews of the Biodiversity Conservation Act 2016 and Local Land Services Act 2013;
• Introduction of draft legislation to implement "Stage 2" reforms to the Environment Protection and Biodiversity Conservation Act (Cth) (EPBC Act).

Please contact Anneliese Korber, Partner in our Environment and Planning team if you would like further information about how these updates might impact your particular situation.

• Updates to the Transport Oriented Development Program
• NSW Government's declaration of additional six renewable energy projects as Critical State Significant Infrastructure
• Release of the NSW Government's 'Plan for Nature' response to the statutory reviews of the Biodiversity Conservation Act 2016 and Local Land Services Act 2013
• Introduction of legislation implementing "Stage 2" of package of reforms to the EPBC Act

Updates to the Transport Oriented Development Program

Amendments to the State Environmental Planning Policy (Housing) 2021

Since our last update, the NSW Government has progressed with implementing the first stage of reforms as part of its Transport Oriented Development (TOD) program, by amending the State Environmental Planning Policy (Housing) 2021 to introduce a new Chapter 5 "Transport Oriented Development" (TOD Amendment), available here.

The TOD Amendment forms part of a broader suite of proposed reforms and amends planning controls for development applications in a "Transport Oriented Development Area" (TOD Area). A TOD Area is land mapped on the 'Transport Oriented Development Sites Map' layer on the NSW Planning Spatial Viewer and is generally land within 400 metres of specified metro and rail stations. It aims to increase capacity for more mid-rise housing and mixed development in these areas.

The new controls in the TOD Amendment are outlined in Guidance released by the NSW Department of Planning, Housing and Infrastructure (the Department) available here. As outlined by the Department, the planning controls include:

• Permissibility: Allowing residential flat buildings in residential zones and local centre zones, along with shop top housing in local centre and commercial zones.
• Building height: A 22m height for residential flat buildings to maintain design standards, and a maximum building of 24m for buildings containing shop top housing to accommodate commercial ceiling height.
• Floor Space Ratio: A maximum Floor Space Ratio of 2.5:1 has been set. This allows for buildings of up to 6 storeys while providing for good design outcomes in relation to landscaping, building setbacks, privacy and open space.
• Lot size and width: Introduction of a minimum lot width of 21 m and no minimum lot size.
• Street frontages: The inclusion of a clause which applies to local centre zones to consider of active street frontages of buildings at the ground floor.
• Heritage: No change to heritage clauses in local environmental plans. Applications involving heritage considerations will continue to be lodged with and assessed by councils. Any new development needs to improve and enhance the heritage values of those locations.
• Affordable housing: A 2% mandatory affordable housing contribution, delivered onsite and in perpetuity for developments with a minimum Gross Floor Area of 2000 m². Affordable housing must be managed by a registered community housing provider. The percentage of the affordable housing contribution will be increased over time.
• Apartment Design Guide: The guide will continue to be the principal guiding document for apartment development, including Transport Oriented developments.

The TOD Amendment will progressively apply to a total of 37 stations over the course of 2024 and 2025, noting an additional six stations were added in April 2024 that were not included in the initial announcement. The TOD Amendment commenced on 13 May 2024 in relation to 18 stations: Adamstown; Booragul; Corrimal; Gordon; Hamilton; Killara; Kogarah; Kotara; Lidcombe; Lindfield; Morriset; Newcastle Interchange; Roseville; Teralba; Turrella; Wyong; Cardiff; and Woy Woy.

The proposed timing for this progressive roll out and when the changes will apply to additional stations is available on the Department's website here.

The TOD Amendment does not apply to development applications made and not determined, on or before 13 May 2024; or modification applications made after 13 May 2024, if consent was granted on or before 13 May 2024.

Commencement of Stage 1 of the low- and mid-rise housing policy

The NSW Government has also progressed with TOD reforms focussed on diverse and well-located homes in response to the Commonwealth Government's National Housing Accord, by way of introduction and commencement of the State Environmental Planning Policy (Housing) Amendment (Dual Occupancies and Semi-detached Dwellings) 2024 on 1 July 2024 available here.

These amendments are the first stage of reforms that will form part of the low- and mid-rise housing policy. They permit dual occupancies and semi-detached homes in all R2 low-density residential zones across NSW. The changes do not apply to:

• land with a high risk from natural hazards like bushfire and floods;
• land located close to dangerous goods pipelines and hazardous aircraft noise;
• land that includes a heritage item; and
• the Bathurst, Hawkesbury, Blue Mountains and Wollondilly areas due to bushfire, flooding and evacuation risks.

The NSW Government has released further guidance on the excluded areas in its 'Policy Exclusions Fact Sheet' available here.

An amendment to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 has also been introduced as part of this package of amendments, switching off the complying development pathway available to dual occupancy development in areas where this development was not previously allowed.

We anticipate the second stage of these reforms will relate to controls on townhouses, terraces and two-storey apartment blocks near transport hubs and town centres, and is expected to be introduced later in 2024.

NSW Government's declaration of additional six renewable energy projects as Critical State Significant Infrastructure

On 3 July 2024, the NSW Government announced that it has declared six renewable energy projects as Critical State Significant Infrastructure (CSSI). CSSI is a type of State significant infrastructure. A declaration that a project is CSSI is made by the Minister pursuant to s 5.13 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) if, in the opinion of the Minister, the project is essential to the State for economic, environmental or social reasons. A declaration of CSSI means the project is permitted without development consent under Part 4 of the EP&A Act and will instead follow the process set out in Division 5.2 of Part 5 of the EP&A Act for approval.

CSSI projects are determined by the Minister, who cannot delegate this decision-making power. Further, there are limited rights to review CSSI decisions, namely third-party appeals in relation to civil enforcement proceedings and judicial review of CSSI decisions can only occur with the approval of the Minister: s 5.27 of the EP&A Act.

The six projects which have been declared CSSI and listed in Schedule 5 of the Planning Systems SEPP are:

• New England Renewable Energy Zone (REZ) Transmission: Electricity transmission infrastructure to connect renewable energy generation and storage projects within the New England REZ to the existing electricity network.
• Victoria NSW Interconnector West Project: Electricity transmission infrastructure to connect the HumeLink Project in NSW with the Western Victoria Transmission Network Project.
• Mount Piper to Wallerawang Transmission Line Update Project: Electricity transmission infrastructure to strengthen connections between areas of renewable energy generation in the Central West Orana REZ and major electricity demand centres.
• Stratford Pumped Hydro and Solar: Pumped hydro and solar power facility which will take advantage of existing mine voids and infrastructure associated with Stratford Mining Complex due for closure in 2024.
• Muswellbrook Pumped Hydro Energy Storage Project: Pumped hydro facility to use an existing mine void at the closed Muswellbrook Coal Mine site as the lower reservoir and a proposal to use an upper reservoir at Bells Mountain.
• Lake Lyell Pumped Hydro Energy Project: Pumped hydro facility which will take advantage of existing infrastructure associated with the Mount Piper Power Station due for decommissioning in 2040.

Three of these proposed projects are transmission projects to connect additional renewable energy generators into the National Energy Market, and three are proposed pumped hydro projects to provide energy generation, capacity and dispatchable power.

Further information published by the Minister is available here.

Release of the NSW Government's 'Plan for Nature' response to the statutory reviews of the Biodiversity Conservation Act 2016 and Local Land Services Act 2013

On 17 July 2024, the NSW Government published its 'NSW Plan for Nature' response to the findings of both the independent review of the Biodiversity Conservation Act 2016 (BC Act) and the statutory review of the native vegetation provisions of the Local Land Services Act 2013 (LLS Act) handed down in August 2023 (Reviews).

These Reviews made various findings and recommendations, including that the BC Act was not meeting its primary purpose of maintaining a healthy, productive and resilient environment and that its operative provisions were deficient. Our previous summary of the findings of these Reviews is available here.

The NSW Government accepted all the findings and most of the recommendations of the two reviews. The NSW Government has foreshadowed substantial reform to biodiversity and native vegetation legislation in NSW, with an increasing focus on achieving 'nature positive' outcomes. As outlined in the NSW Plan for Nature, the term "nature positive" refers to where "the environment is being repaired and regenerated", in contrast with traditional sustainability approaches which seek to minimise negative impacts by slowing or stabilising the rate of biodiversity loss. The full report can be found here.

We are currently preparing a more detailed update on the NSW Plan for Nature, the legislative changes foreshadowed and their potential impact, which we will publish shortly.

Introduction of legislation implementing "Stage 2" of package of reforms to the EPBC Act

We are continuing to closely monitor the federal Government's staged approach to implementing extensive reforms to its key federal environmental legislation: the EPBC Act. Our last update outlined the 'Stage 1' reforms implemented by the Nature Repair Act 2023 (Cth) and expansion of the 'water trigger' in the EPBC Act to require approvals for unconventional gas projects.

Since then, new legislation has been introduced to Parliament to legislate 'Stage 2' of the package of reforms. A summary of the changes as proposed in these 'Stage 2' reforms was published by our colleagues in April 2024 and is available here.

In summary, the reforms that were broadly proposed as part of 'Stage 2' included creating two new national independent bodies:

• Environment Protection Australia (EPA): a new national, independent environmental regulator responsible for administering and enforcing a range of Commonwealth environment laws; and
• Environment Information Australia (EIA): a body responsible for collecting, maintaining and making accessible environmental data and information, releasing state of the environment reports every 2 years, and reporting on progress on national environmental goals.

On 29 May 2024, three bills were introduced to Parliament to effect these proposed reforms as follows:

• Nature Positive (Environment Protection Australia) Bill to establish Environment Protection Australia and its Chief Executive Officer (CEO) (EPA Bill);
• Nature Positive (Environment Information Australia) Bill to establish Environment Information Australia (EIA Bill); and
• Nature Positive (Environment Law Amendments and Transitional Provisions) Bill to amend laws relating to the environment and to provide for transitional matters relating to Environment Protection Australia and the Head of Environment Information Australia (EPBC Act Amendment Bill).

The Bills have passed the House of Representatives and have been referred to a Senate Committee, with a report due on 8 August.

EPA Bill

The EPA Bill proposes to establish the office of the CEO of EPA, who will be appointed by the Governor-General, for a term of not more than five years, and will be the "accountable authority" of EPA for the purpose of the Public Governance, Performance and Accountability Act 2013 (Cth). The CEO will not be subject to direction by any person in relation to the performance of his or her functions and powers unless otherwise specified by legislation.

The purpose of the EPA will be to assist the CEO in performing the CEO's functions, which include:

• advising and assisting the Minister for the Environment and Water (Minister) on exercising any powers or performance of any functions which are also conferred on the CEO, and
• making recommendations to the Minister on opportunities to improve regulation.

The CEO will also have responsibility for establishing and maintaining a register of "registrable decisions", being decisions prescribed under an Act or legislative instrument, and establishing an advisory group to advise and assist in exercising the CEO's functions and powers. The CEO must consider any advice received by this advisory group, but will not be bound by that advice.

EIA Bill

The EIA Bill provides for the establishment of the Head of Environment Information Australia (EIAHead). The EIA Head will be a statutory office holder with independent functions relating to providing access to, assessing and reporting on high quality environmental information and data to the Minister, the CEO and the public.

Key functions will also include:

• Developing and implementing a monitoring, evaluation and reporting framework on whether and to what extent 'nature positive' is being achieved;
• Preparing and publishing reports on the state of the environment; and
• Establishing and maintaining environmental economic accounts.

Amendment Bill

The Amendment Bill generally provides for transitional provisions and amendments of the EPBC Act and other environmental legislation to support the establishment of EPA and EIA. It includes amendments to:

• move some regulatory enforcement, evidentiary and compliance functions from the Minister or the Department of Climate Change, Energy, the Environment and Water, to the EPA and its CEO,
• require reasons for information requests; and
• bolster penalties and compliance tools including the ability to issue and enforce environmental protection orders and perform auditing.

Criminal and civil penalties for offences under the EPBC Act are proposed to increase significantly.

While many of the Minister's regulatory powers and functions will be transferred to the CEO, the administration and decision-making powers for referrals, assessment and approvals for controlled actions and strategic assessments will remain with the Minister. However, the Minister will have the power to delegate all or any of these functions to the CEO or a member of the staff of EPA.

What next?

Each of the Bills are currently progressing through Parliament. We will continue to monitor their progress, implementation and any proposed amendments , to provide further updates on the Stage 2 reforms when available.

Stakeholder consultation on the Stage 3 package of reforms is continuing. The Department of Climate Change, Energy, the Environment and Water (DCCEEW) has indicated that following feedback received to date, this consultation is currently focussed on six key issues:

1. Assessment and approvals systems;
2. Restoration contributions;
3. Standard for First Nations Engagement and Participation in Decision-making;
4. Regional forest agreements;
5. Exemptions (prior authorisation and continuing use); and
6. Climate change.

Following the continuing stakeholder consultation, we expect the new laws will be released for public consultation and introduced later in 2024. Further information on this proposed package of reforms, and how to have your say on the proposed reforms, is available on DCCEEW's website here.