Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (New South Wales) — Zoe

New South Wales regulation

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017

In ForceNSW

Jurisdiction

New South Wales

Act Number

67 of 2018

Collection

regulation

Plain English Summary

9/10 complexity

This regulation manages the switch from old to new rules in New South Wales planning law after major updates in 2017 and later years. It ensures that existing development approvals, building certificates, planning panels, strategic plans, and ongoing processes do not suddenly become invalid. Instead, it maps old items to new equivalents (for example, an old Part 4A building certificate is treated as a new Part 6 certificate under the Environmental Planning and Assessment Act 1979). It sets deadlines for councils to prepare their first local strategic planning statements and community participation plans, protects the legal status of bodies like the Independent Planning Commission as a continuation of the old Planning Assessment Commission, and handles special cases such as ski resort areas in Kosciuszko National Park. It also carries over older savings rules from former schedules of the Act itself.

The regulation affects developers, councils, certifiers, mining proponents, government agencies, and anyone with a live planning application or approval from before the changes. It matters because it prevents chaos during law reform: without it, thousands of projects, certificates, and plans could be thrown into doubt, delaying housing, infrastructure, and environmental decisions. It uses clear 'savings' language so people can tell which version of the rules applies to their situation.

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Deep Dive

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What it does

The Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (the Regulation) is a subordinate instrument made under s 10.16 of the Environmental Planning and Assessment Act 1979 (the Act). Its core function is to ensure continuity when the Act was substantially rewritten by the Environmental Planning and Assessment Amendment Act 2017 (the amending Act) and by subsequent statutes. It does this through three principal mechanisms: (1) savings and transitional clauses that “carry over” existing approvals, certificates, delegations, and processes; (2) interpretive rules that treat renumbered or relocated provisions as if they had always been in their new form (cl 4A, cl 13, Schedule 1 cl 1); and (3) specific application rules that postpone or modify the commencement of new regimes (cl 18, cl 18A).

Part 2 (cll 4–20) is the heart of the original 2017 instrument. It defines “former building and subdivision provisions” (cl 4) and then provides that existing Part 4A certificates continue as Part 6 certificates (cl 14(1)). Pending Part 4A applications are determined under the old law but the resulting certificate is treated as a new one (cl 14(2)). Subdivision works certificates are not required for pre-commencement consents (cl 14(3)). Proceedings to declare complying development certificates or Part 6 certificates invalid are preserved if commenced before the new limitation periods (cl 15). Community participation plans must be prepared by fixed dates (cl 16), but until they exist the old participation requirements continue (cl 16(2)). Public notification of reasons and community views is deferred until 1 July 2018 (cl 17).

Later Parts extend the Regulation’s reach. Part 3 (cll 21–23) deals with the transfer of plan-making powers from the Greater Sydney Commission to the Minister. Part 4 (cl 24) preserves the old fee-payment rules for integrated development applications lodged before 1 January 2020. Part 5 (cl 25) updates references to AS 3959 bushfire standards. Part 6 (cll 26–30) contains transitional rules for the 2020 development contributions amendments, exempting existing planning agreements from new practice-note and reporting obligations. Part 7 (cll 31–35) continues various regional and district strategic plans after the .

Current sections

Direct links to the current provisions in Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017.

233

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

View on official register

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Who it affects

The Regulation’s reach is broad. Consent authorities (councils, the Minister, the Independent Planning Commission, regional panels, local planning panels) must apply the correct transitional rule when deciding whether an old certificate is still valid (cl 14), whether a delegation survives (cl 11), or which plan-making pathway applies (cll 11B, 21–23). Applicants and proponents rely on it to know whether their pre-2017 development consent lapses under the old or new rules (cl 111 of Schedule 6), whether they need a subdivision works certificate (cl 14(3)), or whether their concept plan can still be modified under s 75W (cl 3BA). Certifiers and principal certifying authorities are affected by the conversion of old Part 4A certificates to new Part 6 certificates and by the continuing operation of former building provisions until 1 December 2019 (cl 18(2)).

Councils preparing their first local strategic planning statement face fixed deadlines (cl 11A: Greater Sydney by 31 March 2020; elsewhere by 1 July 2020) and must exhibit drafts by 1 October 2019 in the Sydney region. They must also prepare community participation plans by 1 December 2019 (cl 16). Planning panels (Independent Planning Commission, Sydney district panels, regional panels, local panels, Mining and Petroleum Gateway Panel) are continued as the same legal entities with the same assets, rights, and liabilities (cll 7–10A). Members’ terms are preserved.

Mining and petroleum proponents on strategic agricultural land must navigate the gateway certificate regime preserved in cl 20 of Schedule 2. Ski-resort operators in Kosciuszko National Park operate under a modified consent and certification regime (Schedule 5). State agencies (including the Planning Secretary and the Greater Cities Commission) rely on the Regulation to understand how renumbered provisions operate in contracts, instruments, and other Acts (cl 4A, cl 19).

Finally, the courts are told which limitation periods and procedural rules apply to challenges against old certificates (cl 15) and which version of the law governs existing uses, modifications, and contributions plans (Schedule 1 cll 12, 33, 103–104).

Key duties and rights

Duties are predominantly temporal and procedural. Councils must make their first local strategic planning statement by the dates in cl 11A and exhibit drafts by 1 October 2019 in Greater Sydney. Planning authorities must prepare community participation plans before 1 December 2019 (cl 16(1)). Until those plans exist, mandatory community participation requirements are determined by the pre-2017 rules (cl 16(2)). The Planning Secretary must keep a register of certificates issued under the ski-resort provisions (Schedule 5 cl 9).

Consent authorities exercising functions under transferred provisions must treat renumbered or relocated sections as always having been in their new location (cl 4A(2)–(3)). A gateway determination may authorise a council to be the local plan-making authority even for proposals lodged before s 3.34(2)(g) commenced (cl 11B(1)). Delegations under the old s 23 are taken to be delegations under new s 2.4 (cl 11).

Rights are largely preservation rights. An existing Part 4A certificate “that continues to have effect” is taken to be the corresponding Part 6 certificate (cl 14(1)). A person holding office on a Sydney planning panel immediately before commencement is taken to have been appointed to the corresponding district panel for the balance of their term (cl 8). The Independent Planning Commission is the same legal entity as the former Planning Assessment Commission; its assets, rights, and liabilities are preserved (cl 7(2)). Determinations by the former chairperson as to the number of commissioners are validated (cl 7(4)).

Proponents of transitional Part 3A projects retain the benefit of their environmental assessment requirements even if expressed to expire (cl 2(3) of Schedule 2). Concept plans approved before repeal continue to have effect and can be modified under s 75W in limited circumstances after the 1 March 2018 cut-off (cl 3BA(5)). Owners of land subject to old contributions plans retain the right to have those plans applied according to the law in force when the consent was granted (cll 27–30 of Part 6).

The Regulation also creates interpretive rights. Any document referring to a renumbered provision is taken to refer to the new provision, and anything done under the old provision is taken to have been done under the new one (cl 4A(2)). References to Part 5 or 5.1 are read as references to the new Divisions 5.1 and 5.2 (cl 13(1)), subject to contrary intention.

Gotchas

Most practitioners assume that once the new certification regime commenced on 1 December 2019 the old rules disappeared. Clause 18A, however, keeps the former building and subdivision provisions alive for any interim or final occupation certificate that was in force immediately before that date and for any development consent granted before that date. A consent granted on 30 November 2019 can still be the subject of an occupation certificate issued under the old law years later.

The 1 March 2018 cut-off in cl 3BA is another trap. After that date an approved project or concept plan cannot be modified under s 75W except in the narrow circumstances listed in cl 3BA(5). Many consultants still lodge s 75W requests that are invalid because they were lodged after the cut-off and do not satisfy the “minor error” or “substantially the same” tests.

Clause 4A(4) contains a sleeper: the interpretive rule for renumbered provisions is “subject to any contrary intention in the provision in which a relevant reference occurs”. A careful drafter can therefore disapply the rule in a new environmental planning instrument, potentially creating two different meanings for the same cross-reference.

The definition of “transitional Part 3A project” in cl 2 of Schedule 2 is extraordinarily wide. It includes any project for which environmental assessment requirements were notified or adopted within two years before the repeal date, unless the environmental assessment was not submitted by 30 November 2012 or such later day as the Secretary allows. The Secretary’s power to extend time is not constrained by any statutory criteria, giving the Department enormous residual discretion.

Finally, the Regulation imports entire former Schedules. A practitioner who thinks “I only need to look at the 2017 Regulation” will miss the 1995 RZM sandmining override in Schedule 1 cl 3A, the Walsh Bay special provisions in Schedule 3 cll 2–6, and the detailed ski-resort modifications in Schedule 5.

How to comply

Identify the exact trigger date. For any consent, certificate, or panel appointment, locate the date the relevant application was lodged or the appointment made. Compare that date against the commencement dates in cll 2, 11A, 16, 18 and the various Parts.
Check the history notes. Every clause that has been amended carries a “cl x: Am [year] (number), Sch y[z]”. Trace each amendment to see whether a later change narrowed or expanded the savings.
Use the interpretation clauses first. Apply cl 4A before any other provision. A reference to former s 81A is taken to be a reference to the renumbered section and anything done under the old section is taken to have been done under the new one.
For building and subdivision work, ask: (a) was the consent granted before 1 December 2019? (b) is there an occupation certificate already in force? If yes to either, the former provisions continue (cl 18A). If the work is subdivision work authorised by a pre-s 6.13 consent, no subdivision works certificate is required (cl 14(3)).
For plan-making, determine whether the proposal is in the Greater Sydney Region and whether a gateway determination has authorised the council as plan-making authority (cl 11B). The first local strategic planning statement deadlines are strict (cl 11A).
For Part 3A transitional projects, confirm that the project meets one of the four limbs in cl 2(1) of Schedule 2. If it is only a concept plan that has been approved but no project approval has been given, approval cannot now be granted under Part 3A (cl 3A of Schedule 2).
For contributions and planning agreements, check the commencement date of the relevant paragraphs in cll 27–30 of Part 6. Agreements entered before those dates are exempt from the new annual statement and register requirements.
For ski resort areas, treat the Minister as the consent authority and the Director-General as the principal certifier (Schedule 5 cll 7, 11). Use the guidelines issued under Schedule 5 cl 13 for any advertised development.
Keep a copy of the Regulation as amended. Because it is amended so frequently, work from the official “in force” version on the NSW legislation website and note the date of the last amendment that affects your matter.
When in doubt, obtain a s 10.16 certificate or written advice from the Planning Secretary. The Regulation is complex precisely because it tries to cover every transitional contingency. A formal written confirmation that a particular certificate or consent is taken to be valid under a particular clause will be the cheapest insurance against later challenge.

By systematically working through the trigger date, the relevant Part or Schedule, and the interpretive rules in cll 4A and 5, a practitioner can give confident advice on which version of the law governs any given planning instrument or approval. The Regulation’s value lies in its detail; its danger lies in overlooking one of the many “for the avoidance of doubt” subclauses that alter the obvious outcome.