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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Environmental Planning and Assessment
Amendment (Housing and Productivity
Contributions) Bill 2023
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
No 203 3
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2023
New South Wales
Environmental Planning and Assessment
Amendment (Housing and Productivity
Contributions) Bill 2023
Act No , 2023
An Act to amend the Environmental Planning and Assessment Act 1979 to provide for housing
and productivity contributions; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Bill 2023
[NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Environmental Planning and Assessment Amendment (Housing and
Productivity Contributions) Act 2023.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
Schedule 1 Amendment of Environmental Planning and
Assessment Act 1979 No 203
[1] Section 4.8 Exercise of consent authority functions on behalf of councils where local
planning panel constituted
Omit "7.24" from section 4.8(4)(b). Insert instead "7.28".
[2] Section 4.17 Imposition of conditions
Omit section 4.17(1)(h). Insert instead--
(h) it is authorised to be imposed under the following--
(i) section 4.16(3) or (5),
(ii) subsections (5)-(9) of this section,
(iii) section 7.11 or 7.12,
(iv) Division 7.1, Subdivision 4,
(v) section 7.32.
[3] Section 6.5 Functions of certifiers (including principal certifiers)
Omit "this Part" from section 6.5(5)(a). Insert instead "this part or Part 7".
[4] Section 7.1 Definitions
Omit the definition of special contributions area.
[5] Section 7.4 Planning agreements
Omit section 7.4(3)(d). Insert instead--
(d) for development--whether the agreement wholly or partly excludes the
application of the following provisions--
(i) section 7.11,
(ii) section 7.12,
(iii) Division 7.1, Subdivision 4,
[6] Section 7.4(5A)
Omit "section 7.24". Insert instead "Division 7.1, Subdivision 4".
[7] Section 7.18 Contributions plans--making
Omit section 7.18(2A).
[8] Division 7.1, Subdivisions 4 and 5
Omit the subdivisions. Insert instead--
Subdivision 4 Housing and productivity contributions
7.22 Definitions
In this subdivision and Subdivision 5--
biodiversity certified land means--
(a) land--
(i) the subject of an application declared to be a strategic application
for biodiversity certification under the Biodiversity Conservation
Act 2016, section 8.5(2), and
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
(ii) on which biodiversity certification has been conferred, extended
or modified under that Act, Part 8, or
(b) land taken to be biodiversity certified under that Act or otherwise
subject to biodiversity certification.
HAP Fund--see section 7.31A.
housing and productivity contribution--see section 7.24(1).
measures to conserve or enhance the natural environment--see section
7.24(1).
region means an area of land identified in a Ministerial planning order as a
region for the purposes of this subdivision.
regional infrastructure means the following--
(a) public amenities or public services, including infrastructure that
enhances public open space or the public domain,
(b) affordable housing,
(c) public housing within the meaning of the Housing Act 2001,
(d) transport infrastructure,
(e) regional or State roads,
(f) measures to conserve or enhance the natural environment.
SBC Fund--see section 7.30(1).
strategic biodiversity component--see section 7.26(1)(f)(ii).
strategic plan has the same meaning as in Division 3.1.
transport project component--see section 7.26(1)(f)(i).
Treasury Secretary means the Secretary of the Treasury.
7.23 Effect of subdivision
Nothing in this subdivision affects the operation of Subdivision 2 or 3.
7.24 Provision of regional infrastructure
(1) The object of this subdivision is to facilitate the provision of regional
infrastructure that supports and promotes housing and economic activity in a
region by enabling a contribution (a housing and productivity contribution)
to be required.
(2) Regional infrastructure may be provided in 1 or more of the following ways--
(a) by providing the regional infrastructure,
(b) by recouping the cost of providing the regional infrastructure,
(c) by funding recurrent expenditure relating to providing the regional
infrastructure,
(d) by the Minister, the Planning Ministerial Corporation or the Planning
Secretary exercising the following functions in the administration of
this part--
(i) carrying out research or investigation,
(ii) preparing a report or study or an instrument,
(iii) doing another matter or thing in connection with the
administration of this part.
(3) Regional infrastructure provided under subsection (2)(a)-(c) may be provided
by making a payment to a council for the council to provide the regional
infrastructure.
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(4) A Ministerial planning order may require a housing and productivity
contribution towards the provision of regional infrastructure.
(5) A housing and productivity contribution must not be imposed on development
on land in a region to provide regional infrastructure outside the region or the
State, except to the extent that it is for measures to conserve or enhance the
natural environment.
(6) In this section--
provide infrastructure includes to extend or augment infrastructure.
7.25 Measures to conserve or enhance the natural environment
In this subdivision, measures to conserve or enhance the natural
environment include the following measures implemented by the State or a
council--
(a) a measure relating to biodiversity certified land, including the
following--
(i) an approved conservation measure specified in the order
conferring biodiversity certification on the land,
(ii) other approved measures referred to in the Biodiversity
Conservation Act 2016, section 8.3(3),
(iii) costs and expenses incurred by the Minister, the Planning
Secretary, a council or another prescribed person in making an
application for biodiversity certification under that Act,
(b) a measure that directly conserves or enhances the natural environment
and is undertaken--
(i) for the purposes of an endorsed policy, plan or program, within
the meaning of the Environment Protection and Biodiversity
Conservation Act 1999 of the Commonwealth, section 146A, or
(ii) under the conditions of an approval of the taking of actions or a
class of actions under that Act, section 146B.
Note-- The Commonwealth Minister for the Environment may approve
the taking of actions or a class of actions in accordance with a policy,
plan or program endorsed in accordance with an agreement on strategic
assessment--see the Environment Protection and Biodiversity
Conservation Act 1999 of the Commonwealth, Part 10.
7.26 Content of Ministerial planning orders requiring housing and productivity
contributions
(1) A Ministerial planning order that requires a housing and productivity
contribution must specify the following--
(a) the level and nature of the housing and productivity contribution,
(b) the classes of development to which the housing and productivity
contribution will apply,
(c) the region, or part of the region, to which the housing and productivity
contribution applies,
(d) the way in which the housing and productivity contribution must be
determined,
(e) the time at which the housing and productivity contribution is required,
(f) whether the housing and productivity contribution includes--
(i) a component imposed on development on land identified in the
Ministerial planning order as an area that benefits, or will benefit,
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from the provision of specified transport infrastructure (a
transport project component), and
(ii) a component imposed on development on biodiversity certified
land as a contribution towards a measure referred to in section
7.25 (a strategic biodiversity component),
(g) whether the housing and productivity contribution is required when a
complying development certificate is issued for development.
(2) A Ministerial planning order that requires a housing and productivity
contribution may specify the following--
(a) requirements relating to the form of the housing and productivity
contribution,
(b) conditions that must be imposed by a consent authority or certifier as a
condition of development consent, including the terms of the
conditions,
(c) whether the conditions must require the person having the benefit of the
development consent to obtain a decision by the Planning Secretary
about--
(i) the housing and productivity contribution required under the
Ministerial planning order, and
(ii) other obligations arising under the Ministerial planning order,
(d) exemptions from the housing and productivity contribution,
(e) the indexation of the housing and productivity contribution.
7.27 Making Ministerial planning orders requiring housing and productivity
contributions
(1) Before making a Ministerial planning order that requires a housing and
productivity contribution, the Minister must obtain the concurrence of the
Treasurer.
(2) A Ministerial planning order that requires a housing and productivity
contribution comes into force--
(a) when it is published on the NSW planning portal, or
(b) if a later day is specified in the order--on the later day.
7.28 Housing and productivity contributions imposed as conditions of
development consent
(1) If a Ministerial planning order requires a housing and productivity
contribution in relation to development--
(a) a consent authority must impose a condition on a development consent
for the development requiring the housing and productivity
contribution, or
(b) for complying development--a certifier must impose a condition on a
complying development certificate for the development requiring the
housing and productivity contribution.
(2) The condition must be imposed in accordance with the Ministerial planning
order.
(3) If the consent authority or the certifier fails to impose the condition, the
condition--
(a) is taken to have been imposed in the terms required by the Ministerial
planning order, and
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(b) the condition has effect as if it had been imposed by the consent
authority or the certifier.
(4) A housing and productivity contribution may be required in addition to a
condition imposed under section 7.11 or 7.12.
(5) If a housing and productivity contribution is required to be made before a
certificate under Part 6 or a strata certificate under the Strata Schemes
Development Act 2015 is issued for development, the certificate must not be
issued until the contribution is made.
(6) A condition imposed under this section must not be modified without the
approval of the Minister.
7.29 No connection required
No connection is required between the development on which a housing and
productivity contribution is imposed and the regional infrastructure provided
from the contribution, except--
(a) a transport project component of the contribution may be imposed on
development on land only for transport infrastructure that benefits the
area in which the land is located, and
(b) a strategic biodiversity component of the contribution may be imposed
on development on land only for measures to conserve or enhance the
natural environment that were required for biodiversity certification of
the land.
7.30 No appeals
A person cannot appeal to the Court under this Act in relation to a condition
imposed under this subdivision.
7.31 SBC Fund
(1) There is established in the Special Deposits Account a fund called the
Strategic Biodiversity Contributions Fund (SBC Fund).
(2) The SBC Fund must be administered by the Planning Secretary.
(3) The following must be paid into the SBC Fund--
(a) payments relating to a strategic biodiversity component of a housing
and productivity contribution,
(b) money appropriated by Parliament for the purposes of the SBC Fund,
(c) the proceeds of the investment of money in the SBC Fund,
(d) other money required to be paid into the SBC Fund by or under this Act,
the regulations or other legislation,
(e) money advanced by the Treasurer for the purposes of the SBC Fund.
(4) The assets of the SBC Fund may be applied only for the following purposes--
(a) payments to public authorities for the provision of regional
infrastructure that is a measure referred to in section 7.25,
(b) money required to meet administrative expenses in relation to the SBC
Fund,
(c) other money directed or authorised to be paid from the SBC Fund by
this Act or the regulations,
(d) money to repay money advanced by the Treasurer under subsection
(3)(e).
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(5) A payment for the provision of regional infrastructure that is an approved
conservation measure referred to in section 7.25(a)(i) must be made in
accordance with the order specifying the approved conservation measure.
(6) The Planning Secretary may make a payment out of the SBC Fund, other than
a repayment of money advanced by the Treasurer, only--
(a) with the approval of the Minister, and
(b) after consultation with the Treasurer.
(7) This section does not limit payments being made out of the HAP Fund to the
Planning Secretary under section 7.31D.
(8) The money in the SBC Fund may be invested in a way that the Minister is
permitted to invest money under the Government Sector Finance Act 2018,
Part 6.
Subdivision 5 Establishment of Housing and Productivity Fund
7.31A Establishment of HAP Fund
(1) There is established in the Special Deposits Account a fund called the Housing
and Productivity Fund (HAP Fund).
(2) Different accounts must be established in the HAP Fund to ensure--
(a) housing and productivity contributions from development on land in a
region, and proceeds from the investment of the contributions, are
expended in the region as required by Subdivision 4, and
(b) the transport project component from development on land in an area,
and proceeds from the investment of the component, are expended for
the benefit of the area.
(3) The HAP Fund must be administered by the Treasury Secretary.
7.31B Purpose of HAP Fund
(1) The purpose of the HAP Fund is to support housing and promote economic
activity in each region for which a housing and productivity contribution is
required.
(2) The HAP Fund achieves this by providing a source of funding for regional
infrastructure in the region that--
(a) facilitates the achievement of the planning priorities identified in a
strategic plan applicable in the region, and
(b) is able to be delivered in a reasonable time, and
(c) is aligned with the asset management plan of the public authority to
whom funding is provided.
(3) The planning priorities include the targets for net additional dwellings in each
district referred to in section 3.4(6), definition of planning priorities.
7.31C Payments into HAP Fund
The following must be paid into the HAP Fund--
(a) housing and productivity contributions made under Subdivision 4,
except for amounts required to be paid into the SBC Fund,
(b) money appropriated by Parliament for the purposes of the HAP Fund,
(c) the proceeds of the investment of money in the HAP Fund,
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(d) money required to be paid into the HAP Fund by or under this Act, the
regulations or other legislation,
(e) money advanced by the Treasurer for the purposes of the HAP Fund.
7.31D Payments out of HAP Fund
(1) The following are payable from the HAP Fund--
(a) payments to public authorities for the provision of regional
infrastructure, including associated administrative expenses,
(b) money required to meet administrative expenses in relation to the HAP
Fund,
(c) money directed or authorised to be paid from the HAP Fund by this Act
or the regulations,
(d) money to repay money advanced by the Treasurer under section
7.31C(e).
(2) A payment for the provision of regional infrastructure may be made if the
infrastructure is--
(a) identified in a strategic plan, or
(b) identified in a State infrastructure strategy or an infrastructure plan
under the Infrastructure NSW Act 2011, Part 4, or
(c) recommended for funding by the Minister because the Minister
considers the infrastructure assists in achieving the purpose of the HAP
Fund.
(3) In making a recommendation under subsection (2)(c), the Minister must
consider any representations made, in accordance with arrangements
established by the Minister, by the following--
(a) public authorities that deliver regional infrastructure,
(b) councils,
(c) the development industry.
(4) The Treasury Secretary may make a payment out of the HAP Fund, other than
a repayment of money advanced by the Treasurer, only----
(a) with the approval of the Treasurer, and
(b) after consulting with the Minister.
(5) The regulations may provide for councils to make submissions to the Minister
and Treasurer about future payments from the HAP Fund.
7.31E Investment of money in HAP Fund
The money in the Fund may be invested in a way that the Treasurer is
permitted to invest money under the Government Sector Finance Act 2018,
Part 6.
Subdivision 6 Report by Treasurer
7.31F Treasurer to give annual report
(1) The Treasurer must prepare a report detailing, for each financial year, the
payments made into, and from, each of the following--
(a) the SBC Fund,
(b) the HAP Fund.
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(2) The report must be in the form required by the regulations.
(3) The Treasurer must provide the report to each House of Parliament within 4
months of the end of the financial year to which the report relates.
(4) In this section--
financial year means a period of 12 months commencing on 1 July.
[9] Section 7.32 Conditions requiring land or contributions for affordable housing
Omit section 7.32(6).
[10] Section 7.46 Recovery of charges etc
Insert at the end of section 7.46--
(2) A monetary contribution required to be paid under this part may be recovered
as a debt in a court of competent jurisdiction by the following--
(a) for a contribution under Division 7.1, Subdivision 3--the relevant
consent authority or council,
(b) for a housing and productivity contribution under Division 7.1,
Subdivision 4--the Treasury Secretary or the Planning Secretary.
[11] Schedule 4
Omit the schedule. Insert instead--
Schedule 4 Savings, transitional and other provisions
Part 1 Provision consequent on enactment of
Environmental Planning and Assessment
Amendment (Housing and Productivity
Contributions) Act 2023
1 Continuation of special infrastructure contributions
(1) The former SIC provisions, including anything done under the provisions,
continue to apply, subject to the regulations under subclause (4), to--
(a) a determination made under the former section 7.23 (a 7.23
determination), and
(b) a direction made under the former section 7.24 (a 7.24 direction), and
(c) a condition of development consent imposed under former section 7.24.
(2) A 7.23 determination or 7.24 direction in force immediately before the
commencement of the amending Act, Schedule 1[8] continues in force until
repealed--
(a) under the former SIC provisions, or
(b) by a Ministerial planning order.
(3) The instrument that repeals a 7.23 determination or a 7.24 direction may
contain savings and transitional provisions consequent on the repeal.
(4) The regulations may make provision about the continued application of the
former SIC provisions, including the following--
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(a) specifying determinations and directions made under the former section
7.23 and the former section 7.24, respectively, to which the former SIC
provisions do not apply,
(b) excluding specified land, being land subject to the former SIC
provisions, from the application of Division 7.1, Subdivision 4, as
substituted by the amending Act,
(c) amending the areas to which a 7.23 determination or a 7.24 direction
applies,
(d) providing how the Act and regulations, including former provisions,
apply to the former SIC provisions.
(5) In making a recommendation under section 7.31D(2)(c), the Minister must
consider infrastructure identified in--
(a) a 7.23 determination, or
(b) a proposal publicly exhibited under former section 7.23(4)(b) in relation
to which a 7.23 determination was not made.
(6) In this clause--
amending Act means the Environmental Planning and Assessment
Amendment (Housing and Productivity Contributions) Act 2023.
former section 7.23 means section 7.23, as in force immediately before its
substitution by the amending Act.
former section 7.24 means section 7.24, as in force immediately before its
substitution by the amending Act.
former SIC provisions means Division 7.1, Subdivisions 4 and 5 and Schedule
4, as in force immediately before the substitution of the provisions by the
amending Act.
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