MPGA: The Limited Planning Series Nobody Asked For – Article 2
The first article in this series argued that the Council DA Planner is redundant for permissible use assessments and should be replaced with a Registered Planner certified assessment model. The response was significant. The argument clearly touched a nerve.
But provocation without a pathway is just noise. This article is the pathway to improve the current system’s performance.
The good news is that the NSW planning system already has most of the pieces in place. The Targeted Assessment Development pathway has been legislated under Division 4.3A of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Development Coordination Authority (DCA) is operational from July 2026. The Design and Building Practitioners Act 2020 (DBP Act) already establishes the professional accountability framework for registered engineers and certifiers. The Standard Instrument governs land use across every council in NSW. None of these need to be invented. They need to be connected.
TLDR
The following legislative changes are all that is required to implement the Registered Planner certified assessment model:
1. Amend the DBP Act or enact a parallel instrument to include Registered Planners with statutory declaration requirements. Professional liability for the accuracy of certification is governed by the standard professional indemnity and limitation of actions framework that applies to all registered professionals.
2. Amend the Standard Instrument to create a fourth use classification: Permitted with certified assessment.
3. Enact the State Environmental Planning Policy (Registered Planner Certified Assessment) 2026 (RP Certified Assessment SEPP) under Division 4.3A to declare eligible Tier 2 uses, establish the certified assessment process, and provide the flexibility to add, remove or exclude uses by LGA.
4. Direct the DCA to incorporate automated constraint checks for Registered Planner certified assessments from July 2026.
The three tier model that results:
Tier 1: Complying Development. Certifier issues CDC. No DA. No Council DA Planner.
Tier 2: Registered Planner Certified Assessment. Registered Planner certifies compliance. Consent issues on receipt via the NSW Planning Portal. No Council DA Planner. No RFI.
Tier 3: Full DA merit assessment. Council DA Planner involvement where genuinely warranted. This pool becomes significantly smaller.
The reform that has already happened
The Planning System Reforms Act 2025 is the most significant overhaul of the EP&A Act in a generation. Among its key reforms, Division 4.3A of the EP&A Act establishes the Targeted Assessment Development (TAD) pathway, which came into force on 21 March 2026. The legal framework exists. The definitions, rules and structure are in the Act. What does not yet exist is the SEPP declaring which uses are eligible and, critically, the delivery mechanism specifying who does the assessment and how.
That gap is what this article addresses.
The DCA consolidates State agency referrals for integrated development. Where a proposal triggers a referral to Transport, Environment, Heritage, Bushfire, or any applicable State portfolio, the DCA coordinates the response rather than leaving the applicant to chase multiple agencies separately. Queensland has been running a version of this through the State Assessment and Referral Agency (SARA) for years. NSW is catching up. Full statutory powers commence July 2026.
Together these two reforms have addressed two of the three layers of obstruction in the current DA system. Agency referrals are being streamlined through the DCA. The legislative basis for a faster middle tier assessment pathway is in place under Division 4.3A. The remaining layer is the consent authority assessment itself. That is where the Council DA Planner currently sits. That is where the Registered Planner certified assessment model comes in.
What Division 4.3A actually does
Division 4.3A is the legislative authority for the TAD pathway. A SEPP may declare certain development or classes of development to be Targeted Assessment Development. Where a development is declared TAD, the consent authority must only consider the matters in s.4.15(1)(a) and (d) of the EP&A Act, being Environmental Planning Instruments (EPIs), proposed EPIs, Development Control Plans (DCPs), planning agreements, the EPA Regulations and public submissions. Critically, the consent authority is not required to consider the likely impacts of the development on the environment, the suitability of the site, or the public interest.
That is not an oversight. It is a deliberate legislative policy position. The assumption embedded in Division 4.3A is that site suitability, likely impacts and public interest have already been resolved through the strategic planning process that created the zone and permitted the use. The SEPP-making process for TAD uses addresses those matters before the pathway opens. Each individual TAD application does not need to relitigate them.
This is the same argument made in article one. The land use question has already been answered. Division 4.3A is the State Parliament’s agreement with that position, enacted into law.
The TAD SEPP declaring initial eligible uses is expected to go on public exhibition in Q3-Q4 2026. That is the window to advocate for the Registered Planner certified assessment model as its delivery mechanism.
The three tier model
The current NSW system effectively operates on two assessment tiers. Complying Development at the bottom, fast and certain for uses that meet all CDC standards under the Codes SEPP. Full DA merit assessment at the top, slow and discretionary for everything else. The gap between those two tiers is enormous and that gap is where most of the housing crisis and delay lives.
The Registered Planner certified assessment model proposes a third tier sitting between CDC and full DA merit assessment, using Division 4.3A of the EP&A Act as its legislative home.
It sits above CDC because it covers a broader range of permissible uses where strategic planning has resolved land use suitability but the use is not yet ready for the certainty of a code standard.
It sits below full DA because the land use question is already settled, site suitability and public interest are turned off under Division 4.3A, and there is no Council DA Planner discretion. A certified professional assessment, lodged via the NSW Planning Portal, receipted, notified, consented and proceeded.
The three tiers work as follows.
Tier 1 – Complying Development
The use meets all CDC standards under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). A certifier issues the CDC. No DA. No Council DA Planner. This pathway is being expanded under current reforms with variation certificates now available for minor departures from CDC standards, and more uses moving into it over time.
Tier 2 – Registered Planner Certified Assessment
The use is permissible in the zone, declared as TAD under the RP Certified Assessment SEPP, and the land use question is resolved through the LEP and strategic planning framework. A Registered Planner prepares and certifies the assessment, takes statutory liability, and lodges via the NSW Planning Portal. Consent issues on receipt subject to the DCA automated constraint check described below. No Council DA Planner discretion. No RFI. Fourteen day notification period, after which the development proceeds to Construction Certificate (CC) or Subdivision Works Certificate (SWC).
Tier 3 – Full DA merit assessment
Complex, constrained or genuinely discretionary matters. Council DA Planner involvement where it is genuinely warranted. Some sites carry too many constraints to resolve within the Tier 2 model and the Tier 3 pathway exists for exactly those circumstances. This pool should be significantly smaller than it currently is.
The Standard Instrument amendment
The Standard Instrument governs every LEP in NSW. Zone tables currently define three use classifications:
• Permitted without consent
• Permitted with consent
• Prohibited
A fourth classification is required to give the Tier 2 pathway a permanent legislative home in the instrument:
• Permitted with certified assessment
This fourth classification sits between the existing first classification (Permitted without consent) and the existing second classification (Permitted with consent) in each zone table. Rather than listing individual uses under this classification within each LEP, the zone table simply references the RP Certified Assessment SEPP. Uses that are eligible for certified assessment are declared in the SEPP, not listed in each individual LEP. They are not CDC uses. They are not full DA uses. They are uses that have been through the strategic planning process and are appropriate for certified professional assessment without Council DA Planner merit review.
An example zone table entry under the amended Standard Instrument would look like this:
Zone R3 Medium Density Residential
Permitted without consent: Environmental protection works …
Permitted with certified assessment: As declared in the State Environmental Planning Policy (Registered Planner Certified Assessment) 2026
Permitted with consent: boarding houses, child care centres, community facilities, home occupations, neighbourhood shops, place of public worship …
Prohibited: agricultural land uses, heavy industry, offensive industry …
The amendment to the Standard Instrument flows through to every LEP in NSW automatically when made. No council by council negotiation. No individual LEP amendments required.
The RP Certified Assessment SEPP
The State Environmental Planning Policy (Registered Planner Certified Assessment) 2026 (RP Certified Assessment SEPP) sits alongside the Standard Instrument amendment and operationalises the Division 4.3A TAD pathway for Tier 2 uses. It does the following:
• Declares the initial list of Tier 2 eligible uses by zone, subject to a minimum 28 day public exhibition period as required under the Planning System Reforms Act 2025
• Establishes the certified assessment process including lodgement via the NSW Planning Portal, DCA automated constraint check, notification period, and consent pathway
• Provides flexibility to add or remove uses from the Tier 2 classification over time as confidence in the model builds
• Allows exclusion of specific uses in specific LGA areas where local strategic planning has identified particular sensitivities
The Codes SEPP remains the instrument for CDC uses. The RP Certified Assessment SEPP is a separate instrument for a separate pathway. There is no overlap and no confusion between the two.
What uses belong in Tier 2?
The TAD SEPP is expected on public exhibition in Q3-Q4 2026. DPHI has indicated that TAD may apply to some low to mid-rise housing where validated design standards are already in place, and upgrades to community sporting facilities (among some others). The RP Certified Assessment SEPP should capture uses that do not make it into CDC and are not complex enough to warrant full DA merit assessment.
Indicative Tier 2 uses based on current reform direction include:
• Low to mid-rise housing where validated design standards are in place
• Residential flat buildings in R3 zones where height and floor space ratio standards are met
• Multi dwelling housing in R2 and R3 zones
• Secondary dwellings
• Shop top housing
• Neighbourhood shops in MU1 zones
• Warehouses and light industry in IN1 and IN2 zones where footprint and operational standards are met
These are not controversial uses. They are permissible. The strategic work has been done. The Council DA Planner is not resolving anything by assessing them. They are just slowing them down.
Getting the Registered Planner into the DBP Act framework
The DBP Act is the accountability model. It created registered practitioner declarations, statutory duty of care, and personal liability for designers before a construction certificate could issue. Responsibility placed back onto the professional. The system works because the accountability mechanism is registration, statutory liability and professional indemnity, not employment by council.
It is important to note that a Registered Planner providing a certified assessment under this model is not a certifier. A certifier issues a CDC under the Codes SEPP assessing compliance with a code standard. A Registered Planner provides a certified assessment under the RP Certified Assessment SEPP certifying compliance with the LEP, development standards, and the applicable matters under Division 4.3A of the EP&A Act. Different professionals, different instruments, different pathways, different accountability frameworks. The distinction is deliberate and must be maintained in any legislative drafting.
The same accountability framework that governs registered engineers under the DBP Act needs to apply to Registered Planners under the Tier 2 pathway. Amend the DBP Act or enact a parallel instrument to include Registered Planners alongside registered engineers and certifiers. Require a Registered Planner declaration as the trigger for consent under the Tier 2 pathway. Professional indemnity and disciplinary processes through the Planning Institute of Australia (PIA) or a nominated board. The Registered Planner carries professional liability for the accuracy of their certification at the time it is made. That liability is governed by the standard professional indemnity and limitation of actions framework that applies to all registered professionals.
A proposed amendment consistent with the existing DBP Act framework for engineers would read as follows:
A registered planner who carries out a planning assessment function must:
(a) prepare a compliant planning declaration for the assessment, and
(b) not carry out the planning assessment function unless the registered planner reasonably believes the assessment complies with the applicable environmental planning instruments and development standards.
A registered planner is liable for any loss or damage caused by a defect in a planning assessment that arises from a failure to comply with the applicable environmental planning instruments and development standards.
The liability of a registered planner under this section is governed by the standard professional indemnity and limitation of actions framework that applies to all registered professionals in New South Wales.
This is not a new concept. It is an extension of a model that already exists and already works.
The automated constraint check
A key innovation in this model is the automated constraint check at lodgement. The NSW Planning Portal already holds spatial overlay data for the mapped constraint layers relevant to development assessment including flooding, bushfire, heritage, biodiversity, contamination, coastal hazards and infrastructure capacity.
I have been developing an iPadOS application, DevEx, that already interrogates those overlay layers via the NSW Planning Portal REST servers to identify site-specific constraints at the due diligence stage. The technology to automate this check at lodgement is not theoretical. It exists and is operational in practice today. DevEx will be released to the public later this year.
The proposed constraint check workflow is as follows:
1. Lodgement via the NSW Planning Portal triggers an automated overlay check against mapped constraint layers.
2. Where no constraints are flagged the consent pathway proceeds without DCA intervention.
3. Where a constraint is flagged the DCA has ten business days to review the Registered Planner’s constraint assessment within the certified SEE and either clear it or place a formal Hold.
4. If a Hold is placed the Registered Planner has a further ten business days to provide additional information or a revised assessment.
5. If the constraint cannot be resolved within that period the matter is withdrawn or elevated to Tier 3 Council DA assessment.
6. If the DCA does not act within their ten business day window the consent issues automatically.This safeguard is critical. The clock runs against the DCA not the applicant.
The public interest question
The public had their opportunity to participate in the strategic planning process that permitted these uses. The LEP went through Gateway, was publicly exhibited for a minimum of 28 days, involved referrals to all relevant State agencies, and was executed by a Minister’s delegate. The elected council members participated at that level.
Under Division 4.3A of the EP&A Act, the consent authority cannot consider site suitability or public interest for TAD uses. That is not a removal of public interest protection. It is a recognition that public interest was addressed at the strategic level and does not need to be relitigated at the assessment counter for every compliant application in every permissible zone.
The Registered Planner certified assessment is published on the NSW Planning Portal for each LGA. Any person may lodge an objection on planning grounds during the fourteen (14) day notification period. Planning grounds means inconsistency with the LEP, non-compliance with development standards, or failure to address a mandatory consideration under Division 4.3A. General amenity concerns, personal preference, or impacts already assessed at the strategic level are not planning grounds. If a formal appeal is lodged it proceeds through the Land and Environment Court. Deemed refusals disappear entirely under this model.
The accountability framework
Critics of the first article raised the independence question. If the Registered Planner is paid by the applicant, who holds them accountable?
The same question applies to every registered professional in the built environment. The Principal Certifier is paid by the applicant. The civil and structural engineer is paid by the applicant. The traffic engineer is paid by the applicant. The Council DA Planner’s assessment is also funded by the applicant through lodgement and assessment fees. The accountability mechanism is not who signs the cheque. It is registration, statutory liability, professional indemnity, and disciplinary processes through a professional body.
The building defect crisis of the late 1990s and 2000s was not caused by privatisation of assessment. It was caused by inadequate registration standards, no statutory liability on designers, and no mandatory compliance declarations. David Chandler’s solution was not to bring certification back in house. It was to strengthen the professional accountability framework through the DBP Act. Apply it to planning assessment from the outset and do not repeat the mistakes that caused the building defect crisis.
The reform is ready. The decision is political.
The TAD pathway is legislated under Division 4.3A of the EP&A Act. The DCA is operational. The DBP Actaccountability framework exists. The Standard Instrument is the vehicle for the fourth use classification. PIA holds the registration framework. The NSW Planning Portal has the spatial data for automated constraint checks. A practice management application already interrogates that data in real time.
The State needs to take four steps:
5. Amend the DBP Act or enact a parallel instrument to include Registered Planners with statutory declaration requirements. Professional liability for the accuracy of certification is governed by the standard professional indemnity and limitation of actions framework that applies to all registered professionals.
6. Amend the Standard Instrument to create the fourth use classification: Permitted with certified assessment.
7. Enact the State Environmental Planning Policy (Registered Planner Certified Assessment) 2026 under Division 4.3A declaring eligible Tier 2 uses, subject to 28 day public exhibition, with flexibility to add, remove or exclude uses by LGA.
8. Direct the DCA to incorporate automated constraint checks for Registered Planner certified assessments from July 2026.
Division 4.3A is legislated. The TAD SEPP exhibition is coming. The Registered Planner certified assessment model is ready to be its delivery mechanism. The decision now is whether NSW seizes that opportunity.
Simon Halcrow is a Registered Planner and Registered Environmental Assessment Practitioner and Development Manager at Design Build Instruct Pty Ltd (DBI). He works across Development Applications, Planning Proposals, State Significant Development and State Significant Infrastructure in NSW. visit www.dbilink.com
References and Further Reading
Legislation
Environmental Planning and Assessment Act 1979 — Division 4.3A Targeted Assessment Development
Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025
Design and Building Practitioners Act 2020
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Legal Commentary
Gadens – NSW Planning System Reforms: What Developers Need to Know Link
Sparke Helmore – New NSW Planning Reforms Part 3 Development Assessment Link
Landers – Proposed Changes to EP&A Act Focus on Increasing Housing Supply Link
Barker Ryan Stewart – What Changed in the NSW Planning System on March 21 Link
Norton Rose Fulbright – Significant Changes to the NSW Planning System Link
Lindsay Taylor Lawyers – Alert: Some Planning System Reforms Commence Link
Lexology – NSW Planning System Reforms Link
NSW Government
NSW Planning Portal – Complying Development Link
NSW Government – Planning System Reform Bill Passes Parliament Link