Design Verification, Net Zero Compatibility and Electric Vehicle Charging Facilities: Amendments to the Environmental Planning and Assessment (NSW) Regulations 2000 and Minister’s Guidance under the Proposed Design and Development Framework ‘site

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This preview is the third and final part of our series on the proposed Design & Place framework. Part 1 provided an overview of the proposed framework. Part 2 reviewed new requirements under the draft 2021 State Environmental Planning Policy of Design and Place (DP SEPP).

To help implement the SEPP DP, the Department of Planning, Industry and the Environment (department) recently exposed the project Environmental Assessment and Planning (Design and Location) Amendment Regulations 2021 (Regulation) and Environmental Planning and Assessment (Design Principles and Considerations) Orientation 2022 (Minister’s Direction).

Regulation

The regulation proposes to make changes to the Environmental Assessment and Planning Regulations 2000 (NSW). The amendments serve to clarify some of the implications of the SEPP DP and are important additions to the plan.

A suite of definitions will be added to the existing instrument, including new understandings of green infrastructure, residential apartment development and design review board.[1]

Without being an exhaustive list, some of the main provisions proposed by the regulation concern:

  • Development Control Plans (DCPs);
  • Design Verification Statements;
  • Net zero compatibility;
  • Charging installations for electric vehicles; and
  • Design Review Boards.

Development Control Plans

A DCP is prepared by a local planning authority to provide specific details and advice on the compatibility of certain types of development that are permitted under environmental planning instruments and zoning objectives for land within its jurisdiction.[2]

The regulations provide that when preparing a DCP, a board must take into account the design principles and considerations contained in the SEPP DP as well as the Urban Design Guide.[3] As a result, the implementation of the design principles proposed in the SEPP DP will become more robust while allowing a municipality to individualize the principles according to the land use types in its jurisdiction.

Design Verification Statement

Development applications for residential apartment developments, urban design developments and developments involving public or common space of more than 1,000 square meters must be accompanied by a Design Verification Statement.[4]

The same requirement applies to variation requests submitted under section 4.55(2) or section 4.56(1) of the Environmental Planning and Assessment Act 1979 (New South Wales) (EP&A Act).

A design verification statement should be prepared by an architect, urban designer or landscape architect depending on the type of development involved.[5]

Basically, neither a building certificate nor an occupancy certificate can be issued unless the certifier has received the design verification statement.[6]

Net Zero Compatibility

The regulations further provide that development applications submitted to the SEPP DP must include a net zero statement.[7] The net zero reporting consists of important information related to the building’s estimated energy consumption, the building’s direct and indirect emissions, and data on how the emissions will be recorded and reported.[8]

Of particular interest is requiring evidence to be included in the net zero statement that demonstrates that the development has the infrastructure and space necessary for the building to achieve net zero emissions by January 1, 2035.[9] This is significant given that this requirement exceeds the NSW Government’s current target of reducing emissions by 50% by 2030 and achieving net zero emissions by 2050.[10]

Charging facilities for electric vehicles

Another intriguing proposal from the regulations is that developments including parking will have to install an electricity distribution board that can be used as a charging facility for electric vehicles.[11]

The focus on charging facilities may seem onerous, but it aligns with the NSW Government’s aim to build a world-class electric vehicle charging network under the NSW Electric Vehicle Strategy.[12] The provision also reflects the government’s goal of achieving net zero by 2050.[13]

Design Review Boards

The regulations provide the Minister with broad powers to control the establishment of design review boards (DRP).[14] The Minister shall have the discretion to constitute a DRP that acts in relation to many local government areas simultaneously or in relation to a significant state development or infrastructure.[15] The Minister will have full power to abolish a DRP at any time and for any reason.[16]

Although DRPs are not a new concept as they have played an important role in the development assessment process with respect to significant state development and local development, the regulations expand the function of DRPs to give independent advice to an approval authority on whether the design quality of a development complies with the design principles and considerations contained in the SEPP DP.[17]

A DRP will be required to perform their duties taking into account the design principles and considerations contained in the DP SEPP and in accordance with the Design Review Board Handbook for Local Government.[18]

Minister’s Direction

The Minister has prepared draft instructions pursuant to Section 9.1 of the EP&A Act. The Minister’s instructions will ensure that the Design & Place framework is fully integrated at all stages of the development process.

If published in the Official Gazette, the Minister’s Instruction would require all planning authorities to ensure that planning proposals take into account the principles and considerations set out in the DP SEPP and the new Urban Design Guide and were referred to the appropriate design review board for advice. In addition, the proposal should demonstrate how it responds to and has been informed by Indigenous stakeholder inputs from the territory to which the proposal relates, including its reciprocity with the design features of the country.

The Direction is complemented by a list of objectives that reflect the thinking behind the proposed changes:

Ensure that the design principles and design considerations set forth in the State Environmental Planning Policy (Design and Location) [insert date] are taken into account from the beginning of the planning process

Ensure the objectives of the Urban Planning Guide published by the Ministry in [insert date] are taken into account from the beginning of the planning process

Incorporate good design processes into planning and development to create places that support community health and well-being and to achieve better built forms and aesthetics of buildings, streetscapes and public spaces by providing cohesive urban design guidance that supports place-based approaches to neighborhood planning and development

Ensure that planned areas receive the appropriate design assessment from design review committees and that advice received is considered and incorporated

It is important to note that the Minister’s Direction will apply to proposals that affect land in excess of one hectare and exist in an existing or proposed residential, commercial, mixed-use or industrial area or any other area in which the residential development is permitted. Therefore, the objectives of the instruction are only relevant in specific circumstances, but a general observation is that it will apply to all sector-type developments.

There are a range of circumstances in which a development proposal (it may be necessary to distinguish, as readers may be confused between a rezoning proposal and a development proposal) may be inconsistent with the Directive. In particular, a planning authority must convince the Ministry that an inconsistent proposal is justified by an overall strategy which takes into account the objectives of the Directorate or is of minor importance.

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