Recent Changes to the Education State Environmental Planning Policy
The Education State Environmental Planning Policy (ESEPP) commenced on 1st September 2017. On 15th December 2017, amendments were made to the ESEPP (which came into effect on that date).
The following changes to the ESEPP affecting schools include:
- demolition of structures or buildings (other than heritage items) can be carried out as development without consent, subject to compliance with clause 36 of the ESEPP (previously demolition works were permitted only as complying development). This applies whether or not any new buildings or structures are being constructed to replace the demolished building/structure
- one-storey portable classroom developments will only be exempt development if they are ‘short-term’ and removed within 24 months, and provided they comply with the setback requirements contained in clause 38 of the ESEPP
- the ESEPP does not apply to the determination of an application for a complying development certificate (CDC) made before 1st September 2017 but not finally determined before the commencement of the amendment to the ESEPP (being 15th December 2017). This appears to be an omission from the original ESEPP when it was made.
In respect to a one-storey portable classroom development that is required for a period longer than two years, while the development is no longer exempt development under the policy, the portable classroom may be able to be constructed as development without consent, subject to compliance with clause 36 of the ESEPP and an assessment of the development being conducted in accordance with the NSW Code of Practice for Part 5 activities, for registered non-government schools.
Schools should consider the recent changes to the ESEPP in their future development plans, as the changes have the potential to change the planning approval pathway that may be required for a particular development.
Implementation of the ESEPP
Four months into implementation of the new ESEPP, schools are reminded of key aspects of the policy that should be considered in its development planning:
- complying development is not permitted on land on which a state or local heritage item is located. However this restriction applies only to the part of the land that is described and mapped on the heritage register (for state listed items) or the environmental planning instrument (for local listed items). Schools should review any heritage listings closely to confirm whether or not the listings will prevent the CDC pathway for future development.
- the development standards for complying development are to be strictly applied – this means that if a development does not comply with any of the standards in Schedule 2 of the ESEPP then the development will not be able to be carried out as complying development. The setback standards apply to adjacent lots, including land owned by a school.
- if development is development without consent or exempt development, it cannot be complying development. Therefore schools should consider whether their proposed development falls within either of these pathways under the ESEPP as a first step in determining the applicable planning approval pathway.
- the provisions of the ESEPP (relating to exempt and complying development and development without consent) apply to proposed development within the boundaries of an existing school. For land to be considered to be within the boundaries of an existing school, the land must be being lawfully used for an educational purpose (that is, in compliance with an existing valid development consent).
- under the ESEPP, schools may be permissible with development consent in zones where they would otherwise be prohibited under the relevant local environmental plan. While schools may be permissible with consent, the merits of the development application will still be assessed in detail by the consent authority, including consideration of the objectives of the zone in which the school development is proposed to be located. Any provisions of a development control plan that specify a requirement, standard or control in relation to development permitted with consent under the ESEPP will have no effect (clause 35(9)).
- development can only be carried out as development without consent or complying development if it complies with certain existing conditions of the most recent development consent that applies to any part of the school.
- in addition to planning approvals, school should consider whether other approvals may be required for a proposed development, eg an approval under the Roads Act.
Independent Hearing and Assessment Panel
From 1st March 2018, all metropolitan councils will be required to have an Independent Hearing and Assessment Panel (IHAP) in place. From 1st March 2018 the following developments will be determined by an IHAP, unless the development is regionally or state significant (discussed further below):
- development applications with a value of between more than $5 million but less than $30 million.
- development applications for which the applicant or owner is the council, a councillor, a member of a councillor’s family, a member of council staff, or a state or federal member of Parliament.
- development applications that receive 10 or more objections from different households.
- development applications accompanied by a proposed voluntary planning agreement.
- development applications seeking to depart by more than 10% from a development standard.
- development applications associated with a higher risk of corruption:
- residential flat buildings assessed under SEPP 65
- demolition of heritage items
- licensed places of public entertainment and sex industry premises
- designated development, as set out in the Environmental Planning and Assessment Regulation 2000.
- modification applications that meet the above criteria.
Development applications that do not meet the above criteria will be determined by council officers (but not councillors).
Importantly, proposed school developments that have a capital investment value between $5million and $20million will continue to be determined by a Sydney Planning Panel or Joint Regional Planning Panel.
State Significant Development
Development for the purpose of alterations or additions to a new school that is more than $20million OR for the purpose of a new school (regardless of the capital investment value) is state significant and will be determined by the planning minister or their delegate.
This update was compiled by Samantha Daly of Johnson Winter & Slattery. If you have any questions about the application of the ESEPP and/or the approval requirements for your future development plans please contact Ms Daly at:
Email: firstname.lastname@example.org or phone: (02) 8274 9524.