Environmental Planning and Assessment Regulation 2021

Executive summary of update

• Effective date: 27 March 2026
• This update represents a comprehensive re-write of the Environmental Planning and Assessment Regulation 2021, rather than a simple amendment. The primary intent is to overhaul and clarify various planning and assessment processes, definitions, and financial obligations. The most significant practical consequences for Simpoli include a revised methodology for calculating estimated development costs, new mandatory environmental and sustainability statements for certain non-residential developments, a completely new fee structure, and altered procedures for development applications, modifications, and complying development certificates. This necessitates a full review of internal processes and compliance frameworks.

Impacted parties

This update broadly impacts all parties involved in environmental planning and assessment in New South Wales, including applicants (developers, public authorities), consent authorities (councils, Planning Secretary, Independent Planning Commission), certifiers, and various public authorities.

Change Analysis

1. Fundamental Re-structuring and Re-definition of Key Concepts

• What is new? The entire regulation has been re-written, leading to a complete re-numbering of clauses and a re-organization of content. Key definitions, such as “estimated development cost” (s 6), “designated development” (s 7, Schedule 3), and “BASIX development” (s 6A, Schedule 7), have been substantially altered or clarified. The list of “public authorities” (Schedule 1) and “planning certificates” (Schedule 2) have also been completely re-written.
• What was old? The previous version had different clause numbering and definitions. For instance, the “estimated development cost” calculation in the previous s 6 included design, erection, works, demolition, and fixed/mobile plant, but excluded amounts payable under Div 7.1/7.2, costs of separate consents, land costs, ongoing maintenance, and GST. The new s 6 is more prescriptive, including design/supervision, construction, landscaping, plant/equipment, demolition, fees/charges (including GST), and contingencies, but excluding land costs and civil works.
• Why does this matter? The re-write requires a complete re-mapping of all internal compliance references and procedures to the new clause numbers. The revised definition of “estimated development cost” will directly impact fee calculations and BASIX assessments, potentially increasing or decreasing project costs depending on the nature of the development. The new definitions for designated development and BASIX categories will alter the scope of required environmental assessments and sustainability reporting.

2. Enhanced Environmental and Sustainability Requirements for Development

• What is new? New sections (35BA, 35C, 35D) introduce mandatory statements for non-residential development under the Sustainable Buildings SEPP, covering embodied emissions, net zero commitments (including a 2035 fossil fuel phase-out target), and energy/water use (NABERS commitment). Section 30A introduces requirements for infrastructure development on “avoided land” to be consistent with Cumberland Plain Conservation Plan Guidelines.
• What was old? These specific, detailed requirements for embodied emissions, net zero, and NABERS commitments for non-residential development were not present in the previous regulation. Requirements for “avoided land” were also not explicitly detailed in this manner.
• Why does this matter? This introduces significant new compliance obligations for relevant projects, particularly large commercial and non-residential developments. Projects must now integrate these sustainability considerations from the design phase, requiring new assessments, certifications (e.g., by quantity surveyors, qualified designers, engineers, NABERS assessors), and potentially altering material selection and energy system design. Failure to comply could lead to rejection of development applications or non-compliance with consent conditions.

3. Altered Application, Assessment, and Modification Processes

• What is new?
  • Owner’s Consent (s 23): The new s 23(2) and (3) provide a clearer framework for when owner’s consent is not required, including specific classes of persons (public authorities, easement/covenant beneficiaries, strata lot owners for certain developments). The previous s 23(2) was a general exemption for public authorities or public notification development with specific notice requirements.
  • Council-Related DAs (s 30B, 66A): New requirements for council-related development applications to include a conflict of interest management strategy and for the council to adopt and consider such a policy.
  • Contravention of Development Standards (s 35B, 90A): New requirements for DAs proposing contravention of development standards to be accompanied by a document justifying the contravention, and for councils to notify the Planning Secretary of such approvals/refusals.
  • Assessment Periods (s 91): The assessment periods for various development types have been revised (e.g., designated development or State significant development is 90 days, integrated development is 60 days, development requiring concurrence is 40 days, other DAs are 28 days). The previous version had different default periods (e.g., 60 days for designated/integrated/concurrence, 90 days for SSD, 40 days for others).
  • Modification Applications (Part 5): New deemed refusal period for certain modification applications (s 118A) and revised general deemed refusal periods (s 119).
• What was old? The previous regulation had different provisions for owner’s consent, lacked explicit requirements for council-related DA conflict management, and did not have the specific documentation requirements for contravening development standards. Assessment periods were also different.
• Why does this matter? These changes impact the initial application phase, internal governance for council-led projects, and the appeals process. Clearer owner’s consent rules may streamline some applications. New documentation for contraventions adds a layer of complexity. Revised assessment periods require project managers to adjust timelines and expectations for consent. The new deemed refusal period for modifications introduces a new trigger for appeals.

4. Comprehensive Overhaul of Fee Structures (Schedule 4)

• What is new? Schedule 4 has been completely re-written, introducing a “fee unit” system indexed to the Consumer Price Index (CPI) (Schedule 4, Part 1). The specific fee calculations for various development applications, modification applications, and other matters (e.g., planning certificates, building information certificates) have been revised. New fees have been introduced for specific items like “planning reform contributions” (s 266, 267) and “biodiversity certification modifications” (s 269A).
• What was old? The previous Schedule 4 had fixed dollar amounts for fees, not a CPI-indexed fee unit system. The specific fee amounts and calculation methodologies were different, and some new fee categories did not exist.
• Why does this matter? This is a critical financial impact. All project budgeting and financial forecasting related to planning and assessment fees must be updated to reflect the new fee unit system and revised calculations. The CPI indexation means fees will automatically adjust annually, requiring continuous monitoring. New “planning reform contributions” add a new cost component to many development applications.

Corrective and preventive actions

• Legal Team:
  • Section 6, 6A, Schedule 7: Review and update internal guidance on “estimated development cost” and “BASIX development” definitions to align with new calculation methodologies and scope.
  • Section 23: Review and update internal policies and application forms regarding owner’s consent requirements, particularly for public authorities and strata developments.
  • Section 35B, 90A: Develop a new internal process and template for preparing “contravention of development standards” justifications and ensure timely notification to the Planning Secretary.
  • Section 118A, 119: Update legal advice and internal procedures regarding deemed refusal periods for modification applications and associated appeal rights.
  • Schedule 1, 2, 3, 5, 5A, 6, 7: Conduct a full review of all Schedules to identify and document all new and altered legal rights, obligations, and definitions.
  • Schedule 4: Review and update all fee calculation models and templates to incorporate the new “fee unit” system and revised fee structures.
• Commercial and Procurement Team:
  • Section 6, 6A, Schedule 4: Update project budgeting and financial models to reflect the new “estimated development cost” calculation and the revised, CPI-indexed fee structure.
  • Section 266, 267: Incorporate “planning reform contributions” into project cost estimates for relevant development applications.
• Government & Regulatory Affairs Team:
  • Section 35BA, 35C, 35D: Develop a strategy for engaging with the Department on the implementation of the Sustainable Buildings SEPP requirements, particularly the 2035 fossil fuel phase-out.
  • Section 30A: Review and update internal guidelines for infrastructure development on “avoided land” to ensure consistency with Cumberland Plain Conservation Plan Guidelines.
• Operations Team:
  • Section 35BA, 35C, 35D: Integrate new sustainability statement requirements into project design and construction workflows for non-residential developments.
  • Section 127A: Review and update procedures for temporary housing development, including fire safety statement requirements.
  • Section 128: Update procedures for traffic-generating complying development to ensure traffic impact assessment reports align with new requirements.
  • Section 129A: Update procedures for industrial and business building complying development to ensure design statements are prepared by qualified designers.
• Health Safety and Environment Team:
  • Section 123, 135, 147, 152: Review and update fire safety and asbestos management plans and procedures for complying development certificates to align with new requirements and penalties.
• Project Management Team:
  • Section 91: Adjust project planning and timelines to account for revised assessment periods for development applications.
  • Section 35BA, 35C, 35D: Ensure project teams are aware of and incorporate new sustainability reporting and design requirements from the outset of relevant projects.
  • Section 30B, 66A: Implement new internal protocols for managing conflicts of interest in council-related development applications.
• Finance Team:
  • Schedule 4: Implement new fee calculation logic in financial systems and ensure annual CPI adjustments are applied correctly.
  • Section 266, 267: Establish processes for tracking and remitting “planning reform contributions” to the Planning Secretary.
  • Section 222A, 222B, 222C: Monitor and manage payments out of Special Contributions Areas Infrastructure Fund, SBC Fund, and HAP Fund as applicable.
• Engineering Team:
  • Section 35BA, 35C, 35D: Review and update design standards and specifications for non-residential development to meet new embodied emissions, net zero, and energy/water use requirements.
  • Section 122, 137: Review and update building work plans and specifications to ensure compliance with the updated Building Code of Australia and performance solution requirements.

Risks & opportunities assessment

• Risks: The extensive re-write introduces a high risk of non-compliance due to outdated internal procedures and a lack of awareness of new requirements, particularly regarding fee calculations, environmental statements, and application content. Increased complexity in sustainability reporting and conflict of interest management could lead to project delays, increased costs, and potential penalties. The new CPI-indexed fee structure introduces financial uncertainty and requires continuous monitoring.
• Opportunities: The enhanced focus on sustainability (embodied emissions, net zero) creates opportunities for Simpoli to position itself as a leader in sustainable development, potentially attracting new projects and partnerships. Streamlined processes for certain development types, once understood, could improve efficiency. The new fee unit system, while complex, provides transparency in cost adjustments.