TBB Reacts – Planning Reform Update

31 Jul 2023

Earlier this month the Department released the next stage of amendments to the Planning and Development Act 2005 which will become operational on 1 August 2023.

TBB Principal Jarrod Ross provides a recap of the latest Planning Reform Updates which outline the extension of time for subdivision approvals and modifications to the scheme amendment process.

While a large proportion of these changes are aimed at clarifying and simplifying elements of the legislation and their associated processes, there are a few key outcomes of which the broader industry should be aware. These key outcomes are summarised as follows:

Applications to extend a subdivision approval period

Changes to Part 10 of the Act mean that an application can now be submitted to extend a subdivision approval for a further two years beyond the original prescribed period for the submission of diagram or plan of survey. This (finally) brings subdivision application processes into line with development applications, in that an extension to the term of the approval can be considered and granted, subject to criteria.

In order to approve an application for extension the Commission must be satisfied that:

1. the applicant has done everything that is reasonably practicable to enable the applicant to submit, and request approval of, the diagram or plan of survey within the period that would otherwise apply; and
2. since the approval of the plan of subdivision was granted, there have been no significant changes to the planning framework applicable to the area covered by the plan of subdivision.

Further to this, under s.145A(7) an application for extension can be granted after the expiry period that would otherwise have applied under the original approval.

The determination period for an application for extension is 30 days (or as otherwise agreed between the Commission and the applicant), and only one period of extension is available to an applicant. It should also be noted that where an approval was subject to an automatic 2-year extension under s.288 of the Act (as a result of the COVID19 pandemic), a further extension under the new provisions cannot be granted.

We welcome the ability to extend the life of subdivision approvals as a highly beneficial and long-awaited change to the Act. The process of having to re-apply for subdivision where there is little to no change to the original approval is an unnecessary and often expensive step which rarely adds value to the final outcome.

Further information about the process for extending a subdivision approval timeframe is available here.

Risk Based Pathways for Region Scheme Amendments

Changes to Part 4 of the Act, along with the preparation of the new Planning and Development (Region Planning Schemes) Regulations 2023 (the Regulations), provide for risk-based pathways for the progression of region scheme amendments.

These combined changes will:

1. Provide a process for a new minor (‘basic’) region scheme amendment, which relates generally to an administrative or mapping correction or to align the region scheme with a ‘public planning document’ prepared by the Commission, and can only be used where:
   • it is highly likely that it will have no adverse effect on any land or owner/occupier of any land; and
   • where referral under the Environmental Protection Act 1986 (EP Act) is not required, noting that the concurrent amendment to the EP Act provides for amendments of a class prescribed by regulations (such as basic amendments) to not necessarily require referral to the Environmental Protection Authority (EPA). These regulations are being progressed separately.

A basic region scheme amendment will require advertising for a minimum of 14 days, or as otherwise extended by the Commission.

2. Provide for a minor (‘standard’) region planning scheme amendment to be advertised for a minimum of 42 days, or as otherwise extended by the Commission.

3. Modify the advertising period for non-minor (‘major’ or ‘complex’) region scheme amendment, along with new region planning schemes, from a minimum of 3 months under the current version of the Act to a minimum period of 60 days, or as otherwise extended by the Commission.

These changes are beneficial and will bring the handling of region scheme amendments into line with the risk-based pathways applied to local scheme amendments. They also remove the mandatory 3-month advertising process for all region planning scheme amendments under the current version of the Act, and instead provide that most region planning scheme amendments will be advertised for between 14 and 60 days depending on their complexity.

Further information on the risk-based pathways for region scheme amendments is available here.

Ministerial Approval for Local Planning Scheme Amendment Advertising

Changes to Part 5 of the Act have resulted in all local planning scheme amendments needing to be submitted to the Minister prior to advertising. This process follows the decision of the EPA and the Minister may:

1. Approve the amendment for the purposes of advertising; or
2. Request for modifications prior to advertising, with the potential that such modifications may result in re-referral to the EPA for their further consideration; or
3. Refuse the amendment, following which the amendment is to be discontinued.

Based on the explanatory memorandum presented with the Amendment Bill in May 2020, the intent here is to align the Minister’s powers with the previous Town Planning Regulations 1967, under which if an amendment was considered to be unsuitable for the purposes of advertising the Minister could ensure that it was blocked prior to advertising, rather than putting it through a public process and governmental procedure only to refuse the amendment or require it to be substantially modified at the final stages.

We do also note, however, that the requirement is inconsistent with the proposed approach to region scheme amendments, as the existing requirement for Ministerial consent for advertising of region scheme amendments under s.42 of the Act is to be deleted as part of the modifications to Part 4, and has not been replicated in the new Planning and Development (Region Planning Schemes) Regulations 2023.

Whilst there may be some benefits in Ministerial involvement in a local scheme amendment at an early stage, we are concerned that these changes:

1. Are likely to extend the timeframe for a local scheme amendment, as the Minister will need additional time in order to properly consider and determine whether these amendments are suitable for advertising. There is unfortunately no statutory timeframe for this, though the Department’s website advises they will attempt to deal with these requests within 28 days.

2. Result in a sequential process of EPA review and determination followed by the Ministers review. We consider these reviews could occur concurrently in order to more efficiently progress the amendment for advertising without compromising either review process.

3. May have been better identified as a Ministerial call-in process rather than the mandatory referral of all local scheme amendments, as a significant portion of amendments are unlikely to warrant the attention of the Minister for the purposes of consent to advertise.

Further information on the Ministerial consent for adverting for local planning scheme amendments is available here.