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Assessment Amendment Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
The proposed amendments (explained more fully below) relate to the
following issues:
·
altering draft regional environmental plans and draft local
environmental plans,
·
when environmental studies for draft regional environmental plans are
to be prepared and how notice is to be given of those studies and draft
plans,
* Amended in committee--see table at end of volume.
imposing conditions on development consents requiring section 94
contributions for previously created infrastructure,
resolving inconsistencies between different kinds of environmental
planning instruments,
how approvals granted under Division 4 of Part 5 of the Act may be
modified,
removing the requirement for the Minister's consent for proceedings
for offences against the Act in the summary jurisdiction of the Land
and Environment Court,
joint exhibition of a development application and a draft amendment of
an environmental planning instrument to remove an impediment to the
proposed development,
allowing non-discretionary standards for development to be imposed
by environmental planning instruments,
the scope of the Minister's power to direct an inquiry by a Commission
of Inquiry,
allowing regulations made under the Act to apply, adopt or incorporate
publications as in force from time to time,
statute law revision issues,
savings and transitional issues arising from the amendments.
Clause 2 provides for the commencement of the proposed Act on a day or
days appointed by proclamation.
Clause 3 is a formal provision giving effect to the provisions amending the
Environmental Planning and Assessment Act 1979 set out in Schedules 11 2.
Schedule 1
Amendments relating to altering draft
environmental planning instruments
The majority decision of the New South Wales Court of Appeal in Leichhardt
Municipal Council v The Minister for Planning delivered on 17 May 1995
has thrown doubt on the extent to which a draft environmental planning
instrument may be altered without the altered draft having to be re-exhibited.
Because of that doubt, uncertainty has arisen about whether an altered draft
instrument should be re-exhibited even if an alteration is minor.
Explanatory note page 2
Schedule 1 [1]-[3] amend sections 49 and 51 to make it clear that the
Director and the Minister both have a wide power to alter a draft regional
environmental plan and need not always re-exhibit an altered draft plan. (The
Minister may require the Director to re-exhibit an altered draft plan under
section 51 (4)).
Schedule 1 [4] and [5] amend section 70 to make it dear that the Minister
may alter a draft local environmental plan (because of an issue of State or
regional environmental planning significance) so as to change the substance
of the draft plan and need not always require re-exhibition of the altered draft
plan.
Schedule 2
Amendments relating to preparation and
notice of environmental studies and draft
regional environmental plans
At present, an environmental study must be prepared before a draft regional
environmental plan is prepared for the land to which the study relates. It also
seems that consultation about the preparation of the study and the draft plan
must take place sequentially. Both requirements (and the requirement that the
Director must wait at least 40 days for a response to a request for comments)
are seen to be unnecessarily restrictive, and lead to avoidable delays in the
preparation of these kinds of plans.
Schedule 2 [1] amends section 41 to provide that an environmental study
and the related draft regional environmental plan may be prepared together.
Schedule 2 [2] replaces section 45. Proposed section 45 allows information
about such a study and plan to be notified at the same time to interested
parties and reduces from 40 to 28 days the period for comments by a party
notified.
Schedule 3 Amendments relating to section 94
contributions for infrastructure
When granting development consent under the Act, a consent authority may
impose a condition under section 94 requiring recoupment of the cost
already incurred in providing public amenities or public services that will
facilitate the carrying out of the proposed development.
Explanatory note page 3
Schedule 3 [1] amends section 94 so as to allow conditions to be imposed
with respect to public infrastructure already provided requiring contributions
that are not restricted to "recoupment of the cost" incurred in providing the
infrastructure. Presently, amounts recovered under such conditions must be
used to pay off any amount still owed for the provision of that infrastructure.
The amended section will allow a consent authority to apply money
recovered under such a condition from a developer otherwise than in
repayment of any outstanding debt of the consent authority for the cost of the
infrastructure.
Schedule 3 [2]-[4] amend sections 94 and 94A to make consequential
amendments.
Schedule 4
Amendments relating to inconsistencies
between different kinds of environmental
planning instruments
Currently, there is no general presumption that an environmental planning
instrument of a particular kind (even a State environmental planning policy)
prevails over an instrument of a different kind.
Schedule 4 replaces section 36 with a provision that allows a State
environmental planning policy to prevail over an inconsistent regional
environmental plan or local environmental plan, whenever made (and a
regional environmental plan to prevail over an inconsistent local
environmental plan, whenever made) if express provision is made to that
effect.
Schedule 5
Amendments allowing modifications of
certain approvals
Division 4 of Part 5 provides a scheme under which the proponent of an
activity for which an environmental impact statement has been obtained is
required to obtain the approval of the Minister to carry out the activity if the
proponent is the determining authority for the activity. There is currently no
provision for any such approval of the Minister to be modified should the
proponent wish to modify the activity.
Schedule 5 [3] inserts proposed sections 115BA-115BB which provide for
the modification of such an approval by the Minister if it is proposed to
modify the approved activity so that the modified activity will be inconsistent
with the original approval. Proposed section 1 15BB restates section 1 15B
(4)-(6) so as to extend the current requirements for reporting and
consultation relating to an application for an original approval under Division
4 to provide a system for reporting and consultation in the case of an
application for modification of an approval.
Explanatory note page 4
Schedule 5 [4] inserts proposed section 115C (IA) to acknowledge that the
Director is required to furnish the Minister with a report about the modified
activity.
Schedule 5 [1] and [2] and [5]-[9] make consequential amendments to
sections 115A, 1I5B, 115C and 115E.
Schedule 6
Amendment removing requirement for
Minister's consent for certain proceedings
for offences
At present, the Minister's consent is required before summary proceedings
can be brought in the Land and Environment Court for an offence against the
Act.
Schedule 6 repeals section 127 (6) to remove that requirement.
Schedule 7
Amendments providing for joint exhibition of
development application and draft
amendment of environmental planning
instrument
It would seem at present that a development application relating to prohibited
development can not be advertised at the same time as a draft environmental
planning instrument that would remove the prohibition, because the
advertising of the application could not be in accordance with the Act, owing
to the prohibited nature of the proposed development.
Schedule 7 inserts into the Act proposed Division 4B of Part 3, which
contains the following proposed sections:
Section 72I which states that the proposed Division applies in the
circumstances described above.
Section 72J which declares that nothing in the Act prohibits the making or
consideration by the consent authority of such a development application.
Section 72K which requires public notice of the draft environmental
planning instrument and development application to be given in the same
notice, and requires the periods for public inspection of the notice to be the
longer of any two different periods that might have applied if separate notices
had been given.
Section 72L which acknowledges that the Minister may direct a single
inquiry by a Commission of Inquiry into both the draft instrument and the
development application.
Explanatory note page 5
Schedule 8
Amendment allowing non-discretionary
development standards for development
Under section 90, a consent authority is required to take development
standards into consideration when determining a development application,
but may impose conditions on a development consent that are more onerous
than the requirements of the standards.
Schedule 8 inserts proposed section 90A which allows development
standards to be made "non-discretionary" by an environmental planning
instrument so that, if the standards are complied with, the consent authority is
not entitled to consider the standards further and can not impose more
onerous conditions than imposed by the standards.
If the proposed development does not- comply with such a
"non-discretionary" standard, full consideration will be required by sections
90 and 91 and an application may be made under State Environmental
Planning Policy No l--Development Standards on the basis that compliance
with a development standard is unreasonable or unnecessary in a particular
case.
Schedule 9
Amendments allowing Commissions of
Inquiry of specified scope
The Minister may direct an inquiry be held, in accordance with section 119,
by a Commission of Inquiry into "the environmental aspects" of any
proposed development or an activity (among other things). It is not clear
whether it would be lawful for the Minister to limit the terms of reference of
such an inquiry (for example, to inquire into a particular environmental
aspect of relevance to proposed development or activities).
Schedule 9 [3] and [4] amend section 119 to make it clear that an inquiry
may be limited to a particular part of a development proposal or activity or to
a particular environmental aspect or aspects of the proposal, or in both of
those ways.
Schedule 9 [l] and [2] amend sections 86A and 96 to make consequential
amendments.
Schedule 10
Amendment allowing regulations to apply,
adopt or incorporate publications as in force
from time to time
Section 69 of the Interpretation Act 1987 limits the adoption by a regulation
of a publication (such as an Australian Standard) to the publication as in
force when it was adopted or on a different date specified in the regulation.
Explanatory note page 6
Schedule 10 amends section 157 to allow regulations made under the Act to
adopt publications as in force from time to time (so that any amendments to
the publication may be adopted without an amendment of the regulation
adopting the publication).
Schedule 11
Amendments for the purpose of statute law
revision
The following minor amendments are proposed for the purpose of statute law
revision:
Schedule l1 [l] amends section 4 to make it clear that a reference in the Act
to an owner or lessee of land extends to joint or multiple owners or lessees.
Schedule l1 [2] amends section 26 to remove a cross-reference to the Local
Government Act 1919 (which has been repealed).
Schedule 11 [3] restates section 91A (2) in a simpler form (so as to avoid an
unnecessary cross-reference).
Schedule 11 [4] and [5] amend sections 92 and 93 to improve the expression
and make them easier to follow. (The intention is to avoid possible confusion
between the date on which a consent is granted and the date from which it
operates.)
Schedule 11 [6] amends section 106 to make a correction necessitated by an
incorrect cross-reference.
Schedule 12
Savings and transitional amendments
Schedule 12 [l] amends clause 1 of Schedule 6 to the Act to allow
regulations to be made, if necessary, of a saving or transitional nature
consequent on the enactment of the proposed Act.
Schedule 12 [2] inserts proposed Part 3 into Schedule 6 to the Act. Clauses
in the proposed Part explain how the amendments to be made by the
proposed Act operate in relation to draft environmental planning instruments
and development applications in the course of preparation or pending when
the amendments commence.
Explanatory note page 7