THE 1998 AMENDMENTS TO LOCAL GOVERNMENT AND PLANNING LAW

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1 THE 1998 AMENDMENTS TO LOCAL GOVERNMENT AND PLANNING LAW What are the practical impacts of the changes? Bill Henningham PSM LLB Lecturer BACKGROUND TO THE AMENDMENTS The Environmental Planning and Assessment Act 1979 ('the EPA Act") and related legislation, which commenced in 1980, made dramatic changes to the existing legislative regime in relation to land use planning and development control. The EPA Act in Part 3 introduced a new system of environmental planning instruments ("EPIs") being Local Environmental Plans (LEPs), State Environmental Planning Policies (SEPPs) and Regional Environmental Plans (REPs). The new regime was to ensure that land use decisions were made in accordance with relevant provisions in EPIs which have the force of law. EPIs, by virtue of s. 26 of the EPA Act, have the capacity to control an extremely wide range of activities relating to the environment, which is also very widely defined. This is much more than was the case with planning instruments under Part 12A of the Local Government Act 1919 ("the LG Act 1919") which focused on land use control. At the council level, the plan making process regulated by Part 3 of the EPA Act provided the environmental planning foundation for the development control process. The EPA Act provided a wide definition of "development" including the erection of buildings, the carrying out of works, subdivision and the use to which a building, a work or the land itself is put. The council LEP and other relevant EPIs control, as a matter of law, whether particular types of development are prohibited on certain identified land. Alternatively, particular developments may be permitted without development consent or only with consent. Development standards are provided in EPIs to set standards in relation to the carrying out of development but not as to whether any particular type of development can be carried out. Part 4 of the EPA Act provided the detail for the making of development applications, their assessment and determination. Section 90 set out a checklist of planning considerations. In the words of Street CJ in the Court of Appeal decision of Parramatta CC v Hale (1982) 47 LGRA 319 at 335 "The law is clear that a provision such as s. 90(1) necessitates as a precondition to the validity of a council's decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application." The Local Government Act 1993 ("the LG Act 1993") regulated the erection and demolition of buildings and certain other activities and uses, whether or not development consent was required under the EPA Act for such purposes. Accordingly there was an overlap between the two legislative schemes. However, it must be noted that each scheme had a different emphasis. Building control was principally concerned about the structures of proposed buildings. Development control, while also concerned about the structure of buildings, is mainly concerned about the uses to which buildings are put and their environmental planning impact. The LG Act 1993 regulated the demolition of buildings. However, development consent was only required for demolition if so required by an EPI.

2 Although demolition was not included in the definition of "development" in s. 4 of the EPA Act, an environmental planning instrument could, by virtue of s. 26, control the demolition of buildings or works. Subdivision was defined in s.4 as "development" under the EPA Act and an EPI could require development consent for a subdivision. Under most LEPs development consent for subdivision was required. The LG Act 1993 was never allowed to regulate subdivision works and the formalities necessary for subdivision registration but Part 12 of the LG Act 1919 was allowed to continue to regulate such matters. Councils were able to make orders under the LG Act 1993 in relation to the matters listed in the Table to s. 124 covering 5 types of orders relevantly including orders which required or prohibited the doing of things on premises and orders requiring compliance with an approval. In addition to the three separate legislative schemes of: development control under the EPA Act; building control under the LG Act 1993; and regulation of subdivision formalities for registration, and subdivision works under Part 12 of the LG Act 1919 there was also the need for a developer to get permissions, licences, or approvals under other separate legislation such as the Pollution Control Act 1970 and the National Parks and Wildlife Act The result was that if any of the other required decision makers refused to give its approval to a proposal, the whole project could collapse. In addition to requiring development consent a proposed mine would be likely to require a range of necessary decisions including pollution approvals and licences and a water licence. There is no doubt in my mind that there was a great need for a "one stop shop" approach to the regulation of the development, building and subdivision aspects of land use projects. However, an important question which must be asked about the reform process is whether it is in the words of the distinguished former Judge of the Land and Environment Court and now of the Court of Appeal, Justice Paul Stein - "rational planning or rational economics?" His Honour stated in a paper delivered to a discussion forum organised by the Urban Research Program, Research School of Social Sciences, Australian National University delivered in June 1998: "The trend to reduce the role of real planning in the land use decision making process is rapidly reaching its zenith. It has been argued by critics that the last vestiges of traditional planning and genuine public participation have been largely abandoned by the virtual gutting of Part 4 of the EPA Act in the amendments passed in December 1997".... "The legislation unfortunately reflects a pre-occupation with property rights which is at odds with ecological constraints and accountability". The addition to the EPA Act of the encouragement of "ecologically sustainable development" as an object brings the objects of the EPA Act into line with the Charter in s. 8 of the LG Act However, unlike the LG Act 1993, the EPA Act does not define the expression. PRINCIPAL CHANGES Following the amendments which took effect on 1 July 1998, there is now a single, but multi faceted, system for all land use applications. The control of building and subdivision has been brought totally within the EPA Act. All applications for building, subdivision and development lodged after 1 July 1998 are required to be dealt with under the EPA Act as amended. However, by virtue of Parts 2, 3 and 4 of the Environmental

3 Planning and Assessment (Savings and Transitional) Regulation 1998 ("the Transitional Reg") applications lodged before and not determined by 1 July 1998 are required to be dealt with under the unamended provisions of the LG Act 1919, the LG Act 1993 and the EPA Act respectively. By virtue of cl. 29 of the Transitional Reg (which clause will cease to have effect on 1 July 2000), development (apart from that referred to in sub cl. (2)) being: a prescribed activity; or the subdivision of land including development proposed to be carried out in connection with an existing use require development consent as and from 1 July "Prescribed activities" relate to erecting and demolishing buildings and certain other building related activities in the Table to the unamended s. 68 of the LG Act 1993 and are defined in cl. 3 of the Transitional Reg even though consent is not required under any EPI. Clause 29 operates notwithstanding the provisions of any EPI: see cl. 29(7). SEPP No. 4 enables developments, including relatively simple or minor changes to uses of land or buildings, certain developments by public authorities and subdivisions (mainly boundary adjustments which do not involve the creation of any additional allotment) without the need to lodge a development application. It appears that any development falling within the provisions of SEPP No. 4 which involves building work and is not exempted by cl. 29 2(b) now requires development consent. All subdivision other than of the type exempted from the requirement to obtain consent by cl. 29(2)(c) now requires development consent notwithstanding SEPP No. 4. I hope urgent amendments will rectify these surely unintended results of the 1998 amendments. By virtue of cl. 29(3) of the Transitional Reg, as I have pointed out, demolition cannot be carried out without development consent, despite the provisions of any environmental planning instrument in force as at 11 December 1998: see cl 29(7). The definition of "subdivision of land" in s. 4B now expressly excludes a lease of any duration of a building or part of a building. The requirements for designated development are unchanged. By virtue of cll. 63(1) and 63(2) of the Environmental Planning and Assessment Regulation 1994 ("the EPA Reg") there is advertised development and other advertised development. New categories of development defined as: exempt; local, which includes complying development; and State significant have been introduced. Section 76(1) provides that if an EPI provides that specified development may be carried out without development consent then that development may be carried out in accordance with the instrument, on land to which the provision applies. However, as I have mentioned, by virtue of cl. 29 of the Transitional Reg, if the development is a prescribed activity which includes erecting and demolishing buildings, then after 1 July 1998 such an activity can only be erected with development consent.

4 Exempt Development By virtue of s. 76(2), "exempt development" is development identified in an EPI as being of "minimal environmental impact". Consent is not required under Part 4 of the EPA Act or assessment under Part 5. A SEPP in December 1999 is expected to apply to all councils other than those which have amended their LEPs to identify exempt developments. Developments which could conceivably be included in a "default" SEPP are: permanently constructed barbecues non structural alterations to buildings flagpoles bird aviaries pergolas fencing carports There is no requirement whatsoever for notification to the local council of intention to construct an exempt development. I believe there are real dangers in a system which allows developments to be undertaken without any oversight, or even the knowledge, of the council. Local Development "Local development" is all development requiring development consent, which is not "State significant development" or "exempt development": see s. 76A(4). State Significant Development "State significant development" is development which is so identified by a SEPP or a REP or declared (by notification in the Gazette) to be so by the Minister for Urban Affairs and Planning on the basis of his or her opinion that it is of State or regional planning significance or is "called in" by the Minister: see s. 76A(7). Complying Development "Complying development" is "local development" which can assessed by reference to specified predetermined development standards: see s. 76A(5). However, the provisions of SEPP No. 1 - Development Standards do not apply: see SEPP No. 1 cl. 4A. Complying development is controlled by complying development certificates which can be issued by councils or accredited certifiers. The only conditions which can be imposed are those prescribed by the regulations or those which may be required by an EPI or by a Development Control Plan ("DCP"): see s. 85A(6). A complying development certificate must not be refused if it complies with the predetermined standards. By virtue of s. 84A(5) it is clear that a consent authority may consider and determine a development application in relation to complying development. However, Division 2, which stipulates the procedural requirements for development which requires consent, does not apply to the obtaining of consent for complying development: see s. 77(b). Accordingly, by virtue of Section 76A(2 ) development consent may

5 be granted "by the issue of a complying development certificate". In such case the appeal rights under s. 97 would apply. As by virtue of s. 85A(10) there is no right of appeal against the determination of, or failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier, it is obviously desirable, if making application to a council, to lodge a development application rather than an application for a complying development certificate. Section 85(1) provides that a complying development certificate states that the proposed development is complying development and if carried out as specified in the certificate will comply with all development standards (as defined in the EPA Act) applicable to the development and with all other relevant requirements prescribed by the regulations. In the case of building proposals, the certificate is to identify the BCA classification of the building. Part 6A of the EPA Reg sets out the procedures required for applications and their determination. By virtue of s. 85(4), a complying development certificate for subdivision may authorise works in relation to the subdivision, including roads and stormwater drainage works. An application can be determined unconditionally or subject to conditions authorised by the regulations, an EPI or a DCP (but not otherwise) or by refusal. A council or an accredited certifier must not refuse to issue a complying development certificate on the ground that any component, process or design relating to the development is unsatisfactory, if the component etc. is accredited under the regulations. Also there cannot be a refusal if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations: see s. 85A(3) and (4). The determination of an application for complying development certificate must be completed within 7 days or such longer period as is agreed by the applicant: see s. 85A(8). However, it would appear this and all the other requirements of s. 85A do not apply to a development application to a consent authority as authorised by s. 84A(5). As in the case of exempt development, a SEPP in December 1999 is expected to apply to all councils other than those which have amended their LEPs to identify complying developments. Complying developments which could conceivably be required in an SEPP include: detached single-storey dwellings; single-storey alterations and additions to detached single-storey dwellings; carports and garages associated with detached single storey dwellings; detached two-storey dwellings; alterations and additions to detached two-storey dwellings; swimming pools ancillary to a dwelling for private use only and on lots over 450sq. metres. Designated Development By virtue of s. 77A of the EPA Act and clause 53C of the EPA Reg, designated development is development which is described in Schedule 3 of the EPA Reg.

6 Prohibited Development Prohibited development is, by virtue of s. 76B, is development which is prohibited on certain land by an EPI or development which may not be carried on land with or without consent. Integrated development Integrated development is development which is neither exempt nor complying development but which requires development consent and approval(s) (including licences, consents, permits, permissions and any other forms of authorisations) under other defined legislation: see s.91. Both local development and State significant development can be integrated development: see ss. 91A and 92. The defined legislation specified in s. 91 covers the stated provisions in the following Acts: Fisheries Management Act 1994; Heritage Act 1977; Mine Subsidence Compensation Act 1961; National Parks and Wildlife Act 1974; Rivers and Foreshores improvement Act 1948; Roads Act 1993; Waste Minimisation and Management Act 1995; Water Act A consent authority is required by s.91(a)(2) to obtain from each relevant approval body the general terms of any approval which that body proposes. A development consent for integrated development must be consistent with the general terms of approval proposed by the approval body. Any conditions notified to the consent authority can be imposed: see s. 91A(3). If the approval body notifies the consent authority that it will not grant an approval which is required in order for the development to be lawfully carried out the consent authority must refuse consent to the application: see s. 91A(4). Reference should be made to s. 91A(5) for the consequences of a failure by the approval body to inform the consent authority whether or not its will grant an approval, or of the general terms of its approval. The problem facing consent authorities is exacerbated by the fact that there is no obligation imposed upon an applicant for development consent to notify the consent authority of the approvals which are required. As the requirements are expressed in mandatory terms, a council has a duty to ascertain whether a development falls within the definition of "integrated development" and accordingly, whether the development application is capable of valid determination. This task is proving very difficult and expensive, particularly for rural councils with limited resources. In my opinion, failure to obtain from any relevant approval body the terms of any approval to be granted or to otherwise comply with the mandatory requirements in the sections would expose the development consent to a potential declaration of invalidity by the Court at the suit of "any person": see s. 123.

7 Consideration of Development Applications The heads of consideration have been reduced from 29 under s. 90 of the unamended Act to 5 under s. 79C of the amended Act. The amending legislation has removed from the heads of consideration the obligation which was contained in the unamended s. 90 (1)(b) of the EPA to consider the means that may be employed to protect the environment or to mitigate harm to it. It has retained EPIs and draft EPIs, DCPs and the effect of paragraphs (p) - submissions made and (r) the public interest and has added "the suitability of the site for the development". The Department of Urban Affairs and Planning has issued a Guide to the 5 criteria under s. 79C. The Guide spans 10 pages! Not only cynics have expressed the suspicion that the drastic reduction of heads of consideration was intended to have the effect of reducing judicial review challenges to consents which are based on the alleged failure of the consent authority to properly consider one or more relevant listed matters. Certification of Development Part 4A (ss. 109C to 109Q) provides a system of certification of development at various stages. Section 109D specifies who may issue the certificates, as between consent authorities, accredited certifiers and persons acting on behalf of the Crown. Where building or subdivision work is proposed pursuant to a development consent or a complying development certificate, the proponent may appoint the consent authority or an accredited certifier as the principal certifying authority for the development. Section 109E prohibits the commencement of building or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued. The Part 4A certificates are: a compliance certificate (s109c(1)(a)) which certifies that : the building work complies with the approved plans and specifications and any conditions attached to the consent or complying development certificate; the building is as classified under the Building Code of Australia and that it complies with the regulations; a construction certificate (s109c(1)(b)) which certifies that: the work complies with the approved plans and specifications and will comply with regulations pursuant to s. 81A(5); an occupation certificate (s109c(1)(c)) which authorises the occupation of a new building or the

8 change of use of a building; a subdivision certificate (s. 109C(1)(d)) which authorises the registration of a plan of subdivision; Private Sector Certification Part 4B (ss. 109R to 109ZH) deals with accreditation of persons as accredited certifiers and the authorisation of professional associations as accreditation bodies. Part 4C makes provision for compulsory insurance for accredited certifiers. In its White Paper on Integrated Development Assessment the NSW Government advocated the introduction of private sector involvement in the development assessment process as part of its policy to "encourage competition". I find it hard to comprehend why competition is needed between regulators in a regulation process. I believe that the concept of an accredited certifier retained by a developer to undertake, what is a clearly a public regulatory function, is contrary to the principle propounded by McClelland CJ in Burns Philp v Wollongong City Council (1983) 49 LGRA 420. His Honour at page 442 stated: "The point is that a consultant who is responsible to, and reporting only to, the council is much more likely objectively to approach the question than a consultant who is dependent upon the developer. If, as has been suggested in these two cases, the practice has been regularly developing whereby consultants regularly carry out studies on behalf of developers, it is fairly obvious that they will, even unconsciously, bear in mind the necessity to produce "positive" results (from the developer's point of view) if they wish to obtain further commissions." Internal Review of Determinations Similarly to the ability under s. 100 of the LG Act 1993, a council (as consent authority) may under s. 82A on a request made by the applicant within 28 days from the determination of the application, other than: a determination to issue or refuse a complying development certificate, or a determination in respect of designated development, or a determination in respect of integrated development. review its determination. Orders Part 6 Div. 2A (ss 121A to 121ZP) was inserted into the EPA Act to enable the making of orders under that Act. It transfers from the LG Act 1993 order making powers in relation to building and demolition matters.

9 Building Certificates Part 8 (ss 149A to 149G) contains provisions transferred from the LG Act The position is largely the same as before. However, it must be noted that councils were unable, prior to the commencement of the Statute Law Miscellaneous Provisions Act 1998 No. 2, to order demolition of a building which was erected without approval under the LG Act The reason is that although, by virtue of cl. 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (" the Transitional Reg), a building approval granted under the LG Act 1993 was taken to be a development consent under the EPA Act, this savings provision had no effect if there was no building approval. By Item 6 of Schedule 1 of the Statute Law (Miscellaneous Provisions) Act 1998 Section 121B was amended to empower the giving of an order to demolish or remove a building that was erected without first obtaining any necessary approval under the LG Act 1919 or the LG Act 1993 when either of those Acts imposed an obligation to obtain approval. It is extraordinary that an identical situation arose upon the enactment of the LG Act 1993 and in Burwood Council v Russo L & E Ct. Talbot J. No , 14 March 1995 (unreported) it was held that a council was not empowered after the commencement of the LG Act 1993 to order the demolition of a building erected without approval under the LG Act The Act was appropriately amended. Lightning does strike twice! Planning Certificates The previous provisions in s. 149 remain virtually unchanged but a certificate under the section is now referred to as a "planning certificate". Appeals As before 1 July 1998, a dissatisfied applicant in respect of an application for development consent can appeal to the Land and Environment Court within 12 months: see s. 97. An objector who has made a submission by way of objection to an application for designated development may still lodge an appeal within 28 days. Transitional Requirements in relation to Building Work Where an application for a "prescribed activity" (a number of activities, including erecting and demolishing buildings), is made, the approval provisions in the unamended Local Government Act continued to apply (up until 30 June 1999), where: the application was for the same development as a consent granted under the unamended EPA Act before 1 July 1998; or the application was for the same development as a consent granted under the unamended EPA Act on or after 1 July 1998 in response to a development application made under that Act before 1 July 1998: see cl. 36 of the Transitional Reg. Cl. 49A of the Transitional Reg covers a building or a work in the above situations on and after 1 July 1999, enabling the the imposition of such conditions on a construction certificate as the consent authority or council could have imposed on an approval under the unamended LG Act The unamended LG Act 1993 continues to apply to an application for approval of a "prescribed activity"

10 made but not determined as at 1 July 1998: see cl. 37 of the Transitional Reg. Subject to Part 4, Division 1 of the Transitional Reg, where an approval of a prescribed activity (excluding an approval under Item 6 of the Table to s. 68 of the unamended LG Act 1993) was determined prior to 1 July 1998 then, by virtue of cl. 45(1) of the Transitional Reg the approval is taken to be a development consent under the amended EPA Act. Accordingly, an application for modification of such an approval is to be made under s. 96 of the EPA Act. However, subject to the above, as I have mentioned earlier, as from 1 July 1998 it has been necessary to obtain development consent for prescribed activities under the Transitional Reg: see cl.29. (As I have previously mentioned, the provisions of cl. 29 will cease to have effect on 1 July 2000.) If a council has a local approvals policy which makes provision for exemption from obtaining approvals in relation to building matters then that policy will until 1 July 2000 or the earlier making of a relevant LEP exempt the making of an application for development consent: see cl. 29(2)(b)(ii) of the Transitional Reg. The intention of the amendments is that standards contained in Division 7 of Part 2 of the Local Government (Approvals) Regulation 1993 ("the LG Approvals Reg"), notably those prescribing minimum setbacks of walls from boundaries) should be prescribed in LEPs. As a transitional measure those councils which rely on the LG Approvals Reg for control of development can rely on it but only until 30 June It should be noted that the abandonment of common and widely known standards such as those for setbacks from boundaries means that LEPs have to be researched to determine whether buildings comply with relevant standards. The Institution of Surveyors has recommended to its members that research of LEPs is not practical and that only the following statement should be made in identification survey reports - "Offsets of walls from boundaries are as shown on the sketch". In the Court of Appeal decision in Carpenter v McGrath (1996) 40 NSWLR 39 it was held that the potential power of a council to order demolition of a building on land the subject of a contract for sale which had been erected without approval did not constitute a defect in the vendor's title. An amendment of the Conveyancing (Sale of Land) Regulation proclaimed to commence on 1 January 1999 was designed to redress the imbalance between vendors and purchasers since that decision: see Caveat No The Law Society of New South Wales at page 2. The Item in Caveat gives guidance on the options available for vendors where there is illegal building work on the land to be sold. Transitional arrangements for applications for subdivision and road openings Part 1-2 of the repealed LG Act 1919 continues to apply (up until 30 June 1999) to an application for subdivision or for the opening of a public road where: the application is for the same development as a consent granted under the unamended EPA Act before 1 July 1998; or the application is for the same development as a consent granted under the unamended EPA Act on or after 1 July 1998 in response to a development application made under that Act before 1 July 1998: see cl. 5 of the Transitional Reg. The repealed LG Act 1919 continues to apply to an application for approval made under Part 12 of that Act for the subdivision of land or the opening of a public road made but not determined as at 1 July 1998: see cl. 6 of the Transitional Reg. Clause 49A of the Transitional Reg deals with the situation after 30 June The LG Act 1919 has finally been laid to rest!

11 Development Applications undetermined as at 1 July 1998 The unamended EPA Act continues to apply to development applications lodged but not determined before 1 July 1998: see cl. 11 of the Transitional Reg. Modification of Consents Where an application was made for modification of a development consent under s. 102 of the unamended EPA Act prior to 1 July 1998 and was not determined before 1 July 1998, s. 102 will continue to apply to the application: see cl. 14 of the Transitional Reg. Section 96 applies to applications for modification lodged on or after 1 July Notification to Neighbours If your clients are neighbouring owners of a development I am sure they will be interested to know whether they will be notified of the development so that they can inspect the plans showing the external aspects of the plans. The answer is that apart from developments which are designated and advertised development there are no statutory requirements equivalent to those which were contained in the repealed ss of the LG Act The result is that as decided by Stein J, in Rapid Transport Pty Ltd v Sutherland SC (1987) 62 LGRA 88, in the absence of a statutory requirement or an established policy or practice an adjoining landowner, or for that matter anyone else, had no such legitimate expectation of being heard before consent was granted. However in the case of Hardi v Woollahra MC (L & E Ct, Cripps J, No 40196/87, 17 December 1987, unreported) the then Chief Judge of the Land and Environment Court, Justice Cripps, held that the regular application by a council of a policy or practice that the council would act in a certain way when dealing with a statutory application - namely, invite and consider public submissions - gave rise to a legally enforceable legitimate expectation that the council would, and must, act in accordance with the policy or practice before making a decision. Bearing in mind that the repealed provisions in the LG Act 1993 were the statutory successors of provisions in the LG Act 1919 which were enacted in response to the decision of the Court of Appeal in Hornsby SC v Porter (1990) 70 LGRA 175 it is indeed unfortunate that at this time, when so much emphasis is given in the public domain to the need for transparency of public decision making and the need for effective public involvement, the opportunity previously granted by statute to be informed before a council makes a decision which might affect your clients' property has been summarily removed. Now, unless councils heed the view I express below, your clients will only be informed of the receipt of a development application which might affect their property if the council has a policy or practice of notification or a relevant provision in a DCP which provides for notification or advertising: see s.79a(2). A council could, of course also make provision for such notification or advertising in an LEP. Public Availability of Extracts of Development Applications - a Right to be Notified if "Interested"? By virtue of cl. 48B of the EPA Reg, in relation to all development other than designated or advertised development extracts of a development application relating to the erection of a building: sufficient to identify the applicant and the subject land; and containing a plan of the building that indicates its height and external configuration, as

12 erected, in relation to the land, if relevant to the particular development; are required to be made available to "interested persons" either free of charge or on payment of reasonable copying charges. In my opinion, this right to inspect is in addition to and separate from any right to be notified under s. 79A(2). The provision is also in addition to the rights given by s. 12(1A) of the LG Act 1993 to inspect development applications and "associated documents". A right to inspect a document includes the right to take away a copy of the document in accordance with s. 12B of the LG Act The question now arises on the authority of Porter, particularly the judgment of Cripps J in the Land and Environment Court and his legitimate expectation approach which was not disapproved of by the Court of Appeal, whether "interested persons" (who are not defined) have a legitimate expectation to be notified of an application in which they have an "interest". The legitimate expectation which Cripps J identified arose from the right to inspect plans under s. 312A of the LG Act I believe it is arguable, in the light of the judgment of Cripps J, that the right, by virtue of clause 48B of the EPA Reg, of "interested persons" to inspect extracts including defined parts of plans and to inspect a development application and associated documents, gives those persons, by necessary implication, a legitimate expectation to be notified. In my view, councils should notify as widely as reasonably practicable to avoid a Court decision striking down a development consent which was not notified to an "interested person". Environmental Assessment under Part 5 Part 5 is a safety net to ensure that "activities" (which accord with "development" as defined by s.4) which do not require development consent are required to be assessed to determine whether they would be likely to significantly affect the environment. If the answer is in the affirmative an Environmental Impact Statement is required. The definition of "activity" has been amended to bring it into line with the expanded definition of "development" in s. 4. Conclusion To make the new regime work in the short term councils have needed to prepare LEPs which list developments which do not require consent (exempt developments) and developments which cannot be refused if pre-determined standards have been complied with (complying developments). Any council which has not listed its exempt developments in an LEP by 1 December 1999 will be subject to a default list prescribed by a SEPP. It is expected that the same situation will apply for complying developments. However noble were the Government's intentions for the package of amending legislation, confusion still appears to reign in relation to its implementation and continuing operation. The situation is not helped by the continuing flood of legislative and regulatory amendments, some of which have been slow to reach the Services. In a paper presented on behalf of the Department of Urban Affairs and Planning in early 1998, the view was expressed that the reforms "will streamline the current development assessment processes and they will ensure that the assessment of a proposal is appropriate to its impact and complexity." The then Minister for Urban Affairs and Planning, the Hon. Craig Knowles, in his Second Reading Speech to the Environmental Planning and Assessment Amendment Bill on 15_ October 1997 said, referring to the proposed package of legislation: "In simple terms, the package will make it easier to do business and invest and create jobs in this State; provide greater certainty, clarity and consistency in the regulatory and decision making processes associated with land use management and development assessment, remove unnecessary regulations

13 and streamline the assessment process; provide opportunities for choice for consumers; put pressure on local councils and State Government agencies to perform..." I leave it to my readers to make their own assessments as to whether these official predictions have been realised.