Key points

On March 1, 2022, 11 new State Environmental Planning Policies (SEPPs) commenced, which re-organised and repealed 45 former SEPPs.

With no savings and transitional provisions, these new SEPPs apply to the assessment and determination of pending development applications.

This article responds to key questions in relation to this reform.

What are the new SEPPs?

A table summarising the 11 new SEPPs (new SEPPs), together with the former SEPPs that have been incorporated into each new SEPP (former SEPPs) is included at the end of this article.

Have the former SEPPs been repealed?

Yes, all of the former SEPPs identified in our table were repealed on 1 March 2022.

There are no savings and transitional provisions under the new SEPPs. This means that, in general, the former SEPPs no longer apply to existing development applications and consents, and the new SEPPs apply instead.

Does that mean the law has changed?

Not necessarily.

The new SEPPs have dealt with the provisions of the former SEPPs in one of three ways:

• Some provisions have been directly transferred into the new SEPPs with no amendments;
• Some provisions have been transferred into the new SEPPS with amendments; or
• Some provisions have been repealed entirely.

Section 30A of the Interpretation Act 1987 which applies to the transfer of provisions states that the transfer “does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred”. This section applies subject to any amendments made to the provision in the new instrument.

Accordingly, the operation and meaning of the transferred provisions has not changed, unless modified in the new SEPPs.

So is everything the same then?

Not necessarily.

All provisions of the Interpretation Act apply to an Act or instrument “except in so far as the contrary intention appears” in the Interpretation Act or the Act or instrument so concerned: s 5(2) of the Interpretation Act.

A key rule of statutory interpretation is that a provision must be interpreted in its context, including in the context of the other provisions of the Act or instrument.

This raises the potential issue that, as a result of the provisions of the former SEPPs being re-organised into the new consolidated SEPPs, the meaning of some of the transferred provisions may have changed.

What should planners do?

Due to the potential for interpretation issues, we recommend that planners closely review the provisions of the new SEPPs which apply to any existing development applications and consents.

If you are unsure about the interpretation of any of the provisions of the new SEPPs we recommend that you obtain legal advice.

Key issues to look out for include:

• Are there any inconsistencies in the provisions of the new SEPP;
• Is there a term used multiple times in the new SEPP that appears to mean different things in different provisions; and
• Are there any relevant provisions of a former SEPP which have not been transferred into a new SEPP.

What is the purpose of the reform?

The stated purpose of the reform is to simplify the planning system by organising SEPPs thematically, in accordance with the Minister’s Planning Principles.

Pursuant to a Ministerial Direction which commenced on 1 March 2022 pursuant to s 9.1 of the Environmental Planning and Assessment Act, planning authorities must have regard to the Minister’s Planning Principles in preparing all new planning proposals.

The Minister’s Planning Principles are:

1. Planning Systems: A strategic and inclusive planning system for the community and the environment.
2. Design and Place: Delivering well-designed places that enhance quality of life, the environment and the economy.
3. Biodiversity and Conservation: Preserving, conserving and managing NSW’s natural environment and heritage.
4. Resilience and Hazards: Managing risks and building resilience in the face of hazards.
5. Transport and Infrastructure: Providing well-designed and located transport and infrastructure integrated with land use.
6. Housing: Delivering a sufficient supply of safe, diverse, and affordable housing.
7. Industry and Employment: Growing a competitive and resilient economy that is adaptive, innovative and delivers jobs.
8. Resources and Energy: Promoting the sustainable use of NSW’s resources and transitioning to renewable energy.
9. Primary Production: Protecting and supporting agricultural lands and opportunities for primary production.

Table summarising the changes

We note that the 11 new SEPPs are in addition to the State Environmental Planning Policy (Housing) 2021 which commenced on November 26, 2021 and repealed 5 former housing related SEPPs and the proposed Design and Place State Environmental Planning Policy 2021. The existing State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 continues to apply.