New NSW Planning Reforms – Part 2 – Administration and Planning Authorities

In this article we delve deeper into the proposed amendments to the NSW Environmental Planning and Assessment Act 1979 (EPA Act) under the Environmental Planning and Assessment (Planning Systems Reforms) Bill 2025 (Bill), with a particular focus on the objects of the EPA Act, the proposed new authorities and what those changes could mean for our clients.

Amendments to the objects of the EPA Act

The Bill proposes to wholly replace the objects of the EPA Act. The new objects will include the majority of the current objects, but there is a revised focus on delivery of housing and new objects of promoting resilience to climate change and a new object of promoting a proportionate and risk-based approach to environmental planning and assessment.

The proposed change to the objects of the EPA Act reflects the intent of the amendments as expressed in the Second Reading Speech, being to address housing supply shortages and move away from a process driven system towards a more risk-based approach.

Amendments to the objects will not apply to applications lodged but not finally determined before the commencement of the amending legislation.

Authorities and their roles: HDA and DCA

Housing Delivery Authority

The Housing Delivery Authority (HDA) has already been established and has been operational since December 2024.  It was established by Ministerial order made under s 2.3 of the EPA Act: Environmental Planning and Assessment (Housing Delivery Authority) Order 2024 (HDA Order).

Section 4 of the HDA Order establishes the HDA panel, and in reliance on s 2.3(2) of the EPA Act members of the HDA panel are to be appointed by the Minister or the Planning Secretary, as the case requires.

Section 5 of the HDA Order lists the functions of the HDA to include, amongst others:

• providing advice, recommendations or reports to the Minister about: (i) residential development and housing supply; (ii) the declaration of specific residential development on specific land as State significant development (SSD); (iii) the rezoning of land for residential purposes; (iv) a direction that the Planning Secretary, or a panel, person or body, be the Planning Proposal authority for the making of proposed LEPs
• providing advice, recommendations or reports to public authorities about residential development, housing supply and the rezoning of land for residential purposes, and
• preparing guidance materials in relation to development that is declared under s 4.36 to be SSD.

One of the most obvious impacts that the HDA has had on housing development is that following advice, recommendations or reports to the Minister about the declaration of specific residential development on specific land as SSD, the Minister evokes its powers under s 4.36(3) of the EPA Act and declares development to be SSD by a Ministerial planning order.  This has the effect of removing the development from the local approval pathway and placing it into a more streamlined SSD approval pathway.

The Bill proposes to embed the HDA in the EPA Act, with s 4 and s 5 of the HDA Order essentially inserted under a new division: Division 2.3A (HDA).  The Planning Secretary will become a permanent member of the HDA.

Additionally, miscellaneous provisions about the HDA will now be included in the EPA Act, such as:

• the HDA may arrange for the use of the services of staff or facilities of the Department or other public authorities and engage experts and other persons it may require to exercise its functions
• the HDA may delegate one of its functions, to a person or body referred to in s 2.4(1) of the EPA Act, this would include delegating a function back to a local council
• the Environmental Planning and Assessment Regulation 2021 (EPA Regulations), or an environmental planning instrument (EPI), may confer or impose additional functions on the HDA and make provision about the exercise of functions conferred or imposed on the HDA, and
• an annual report of the HDA must be published as part of the annual report of the Department.

Development Coordination Authority

The Bill proposes to establish and embed the Development Coordination Authority (DCA) under a new division of the EPA Act: Division 2.3B (DCA).

New s 2.11F of the EPA Act will list the functions of the DCA as including:

• providing advice, recommendations and reports to the Minister, at the Minister’s request, on any matter, including a general or particular planning or development matter, and
• other functions conferred or imposed on it under the EPA Act, including the EPA Regulations or other instruments under the EPA Act, or another Act.

The DCA will have miscellaneous provisions applying to it that are identical to the HDA, save that it does not have to annually report to the Minister.

The new s 2.11H of the EPA Act will mandate the sharing of information between a public authority, such as a council, and the DCA.  This reflects its function as being a centralised decision-making authority, for example it will be the central referral agency for a development application for development that is ‘integrated development’.  The DCA will be the one authority empowered to issue ‘general terms of approval’ for a consent (proposed new s 4.47(4A)). If development consent is granted with general terms of approval proposed by the DCA, the approval body must grant the relevant approval on terms consistent with the development consent.

Will the HDA and DCA deliver?

The HDA has been active since its inception, considering over 500 expressions of interest for housing projects to be declared as SSD. Over 240 projects have been declared SSD by the Minister under the functions of the HDA. The proposed amendments will not change the current processes or outcomes under the HDA. We anticipate that residential development projects will continue to be declared SSD under the HDA.

Both councils and applicants will benefit from a streamlined process for ‘integrated development’ and concurrence referrals, provided the DCA can meet the demand that will be created and the Planning Portal centralised system can support it.  We think the proposed changes are likely to result in reducing the procedural steps and time spent dealing with referral agencies. Whether or not the outcomes will adequately protect the environment will depend on the approach taken by the DCA when issuing ‘general terms of approval’.

Decisions of the DCA will be reviewable under proposed new s 8.2(1)(b1) of the EPA Act. A review of a DCA decision is to be conducted by the DCA. Where the DCA is the Planning Secretary, this will result in the review being conducted by the same person who made the decision. There will be some question about the appropriateness of such a review, and whether it will be perceived as a valuable exercise by any applicants.