On 1 March 2022, the New South Wales government has repealed some 45 State Environmental Policies (SEPPs) and consolidated them into 11 new SEPPs. For the most parts, the provisions of the repealed SEPPs are simply transferred into the consolidated SEPPs.
The following table shows the result of the SEPP consolidation:-
| Consolidated SEPP | Repealed SEPP |
| State Environmental Planning Policy (Planning Systems) 2021 | State Environmental Planning Policy (State and Regional Development) 2011;
State Environmental Planning Policy (Aboriginal Land) 2019; and State Environmental Planning Policy (Concurrences and Consents) 2018. |
| State Environmental Planning Policy (Biodiversity and Conservation) 2021 | State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017;
State Environmental Planning Policy (Koala Habitat Protection) 2020; State Environmental Planning Policy (Koala Habitat Protection) 2021; Murray Regional Environmental Plan No 2—Riverine Land; State Environmental Planning Policy No 19—Bushland in Urban Areas; State Environmental Planning Policy No 50—Canal Estate Development; State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011; Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997); Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment; and Willandra Lakes Regional Environmental Plan No 1—World Heritage Property. |
| State Environmental Planning Policy (Resilience and Hazards) 2021 | State Environmental Planning Policy (Coastal Management) 2018;
State Environmental Planning Policy No 33—Hazardous and Offensive Development; and State Environmental Planning Policy No 55—Remediation of Land. |
| State Environmental Planning Policy (Transport and Infrastructure) 2021 | State Environmental Planning Policy (Infrastructure) 2007;
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017; State Environmental Planning Policy (Major Infrastructure Corridors) 2020; and State Environmental Planning Policy (Three Ports) 2013. |
| State Environmental Planning Policy (Industry and Employment) 2021 | State Environmental Planning Policy (Western Sydney Employment Area) 2009; and
State Environmental Planning Policy No 64—Advertising and Signage. |
| State Environmental Planning Policy (Resources and Energy) 2021 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007; and
Sydney Regional Environmental Plan No 9—Extractive Industry (No 2—1995). |
| State Environmental Planning Policy (Primary Production) 2021 | State Environmental Planning Policy (Primary Production and Rural Development) 2019; and
Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas). |
| State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021 | Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
Darling Harbour Development Plan No 1; Sydney Regional Environmental Plan No 26—City West; Sydney Regional Environmental Plan No 16—Walsh Bay; Sydney Regional Environmental Plan No 33—Cooks Cove; and State Environmental Planning Policy No 47—Moore Park Showground. |
| State Environmental Planning Policy (Precincts—Central River City) 2021 | Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006; State Environmental Planning Policy (Kurnell Peninsula) 1989; Sydney Regional Environmental Plan No 24—Homebush Bay Area; and State Environmental Planning Policy (Urban Renewal) 2010. |
| State Environmental Planning Policy (Precincts—Western Parkland City) 2021 | Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006; State Environmental Planning Policy (Western Sydney Aerotropolis) 2020; State Environmental Planning Policy (Penrith Lakes Scheme) 1989; Sydney Regional Environmental Plan No 30—St Marys; and State Environmental Planning Policy (Western Sydney Parklands) 2009. |
| State Environmental Planning Policy (Precincts—Regional) 2021 | Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;
State Environmental Planning Policy (Activation Precincts) 2020; State Environmental Planning Policy (Kosciuszko National Park—Alpine Resorts) 2007; and State Environmental Planning Policy (Gosford City Centre) 2018. |
As at 1 March 2022 only three SEPPs had not been amended. These SEPPs are the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
Another aspect of the SEPP consolidation is that, provisions within the consolidated SEPPs are now referred to as “sections”, as opposed to “clauses”.
In theory, the consolidation should make it easier for applicants, consent authorities, and practitioners to navigate planning system. However, some of the transferred provisions have not been imported to consolidated SEPPs as smoothly as possible, and thus making interpretation of certain provisions of the consolidated SEPPs difficult and cumbersome.
For example, section 2.6(1) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) provides:-
“A person must not clear vegetation in a non-rural area of the State to which Part 3 applies without the authority conferred by a permit granted by the council under that Part.”
At the first glance, the reference to “Part 3” appears to be a drafting error as there is no Part 3 in the Biodiversity SEPP. To construe section 2.6(1), it is necessary to consider section 1.4 of the Biodiversity SEPP, which provides a transferred provision is to be construed as if it had not been construed under section 30A of the Interpretation Act 1987.
Section 2.6(1) of the Biodiversity SEPP was transferred from clause 7 (1) of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP), which does have a Part 3. Part 3 of the Vegetation SEPP had been transferred to Part 2.3 of the Biodiversity SEPP. As result, the reference to Part 3 in section 2.6(1) of the Biodiversity SEPP appears to be reference to Part 2.3 instead.
Another example of the constructional difficulties of the consolidated SEPPs is the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), which incorporates four separate SEPPs including the former State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP).
The saving and transition provisions of the former SEPPs have not been transferred to the Transport and Infrastructure SEPP with the notable exception of the Education SEPP. However, those saving and transition provisions of the former SEPP would continue to apply by virtue of section 5(6) and 30(2)(d) of the Interpretation Act 1987.
Thus, to consider whether a provision transferred from, for instance, the former State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to a particular development application, it is necessary to first consider whether there was any applicable saving and transition provision under the repealed Infrastructure SEPP.
The Transport and Infrastructure SEPP has singled out the Education SEPP in the saving and transition provisions under Schedule 9. Under clause 1(1) of Schedule 9, application of Chapter 3 of the Transport and Infrastructure SEPP, which incorporates the former Education SEPP, is expressly excluded from applications made under Part 4 of the Environmental Planning and Assessment Act 1979 (presumably, applications made under Part 5 of the EP&A Act would still be subject to Chapter 3 of the Transport and Infrastructure SEPP). Yet, clause 1(2) then provides exception to the saving provision clause 1(1), thus creating a potentially confusing situation where a development application made under Part 4 of the EP&A Act would be subject to some, but not all, provisions under Chapter 3 of the Transport and Infrastructure SEPP.
Further, clause 3 of Schedule 9 to the Transport and Infrastructure SEPP provides the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021 (2021 Amendment), which commenced on 17 December 2021 (that is after the Transport and Infrastructure SEPP had been gazetted but before it came into effect), does not apply to applications that have been submitted but not finally determined before the commencement of the 2021 Amendment. Why the 2021 Amendment has been singled out is unclear, given a nearly identical saving and transitional provision relating to the 2021 Amendment is located under clause 2 of Schedule 5 to the Education SEPP.
The issues identified in this article are likely to be just the tip of the iceberg. Some of these issues, particularly those relating to the saving and transitional provisions, will likely become less problematic as time marches on and extant applications get finally determined. However, in the meantime, consent authorities must carefully consider not only the consolidated SEPPs, but also the repealed SEPPs, when assessing development applications.
