For those Traffic & Transport and other professionals involved in the building and assessment of new developments in New South Wales, you will be well versed in Clause 101 of State Environmental Planning Policy (SEPP) (Infrastructure 2007) and if you are not then you haven’t been paying attention!

Clause 101 states, inter alia, that where a development fronts a classified road that the development application must be referred to Transport for New South Wales (Previously RMS) for their review and endorsement or otherwise.

This review typically includes the application of Clause 101-2 (a) of the SEPP which states that:

2. “The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:
(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and
(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:
     (i) the design of the vehicular access to the land, or
     (ii) the emission of smoke or dust from the development, or
     (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and
(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.”

In basic terms the intent/objective of this clause has been to ensure that the safety, function, operation/efficiency, and travel times on the State Roads are not compromised by the following:
     (i) Providing access from the State Road where other local road access is available
     (ii) Providing poorly located and poorly designed access which creates safety issues.

On face value this all seems reasonable, but in reality, when clause 101-2 (a) is applied strictly, the consequences can often have a detrimental impact in achieving the best outcomes for a development or, in some cases, not achieving any outcome at all. (i.e. project cannot proceed)

So in the new era of Transport for New South Wales (with RMS now formally dissolved and the adoption of a single Transport & Roads Minister for the Greater Sydney Metro Region), and in a post COVID-19 setting (where areas of place making and maximising job creation outcomes are viewed more critically than how fast you can travel in your car on the State Road Network) we believe it is now an opportune time to revisit/review clause 101-2 (a) to ensure the detrimental impact on development approval times and/or development access arrangements are put within a more flexible and clear policy setting.

From a development perspective and at the planning stage of any development project, access considerations start with determining the quantum and types of users of the development and how access for these users can be made as easy and convenient as possible, obviously ensuring that their safety is front of mind.

However because Clause 101-2 (a) is in fact legislated it is applied strictly in a black or white sense with no degree of flexibility that someone within a State Government Agency assessing the development can turn to, other than when there is no other “practical or safe” alternative to using the State Road for access.

It is also acknowledged that some developers might not always have TfNSW’s best interests at heart and unfortunately this seems to have set a precedent for those developers looking to do the right thing by everyone as far as the access impacts are concerned.

We represent the latter of these two groups and can point to a number of instances where some flexibility in Clause 101-2 (a) would have resulted in a better outcome for the design and saleability of the development and reduced the development approval times with negligible impact on the operation of the State Road.

In our opinion, and as a way of starting a process of changing this legislation, we would suggest Clause 101 – 2(a) read more or less as follows:
2. “The consent authority shall grant consent to development on land that has a frontage to a classified road if it is satisfied that there is clear justification that:
     (a) the safety, efficiency and ongoing operation of the classified road is not adversely [1] affected by the access proposal(s)
     (b) consideration has been given to provision of access to the land by a road other than the classified road."

[1]     “Adversely” would be measured through an assessment of traffic level of service and also considering other strategic goals and future plans for the road and wider study area as a whole.

The above would still provide a degree of control over the impacts and safety on the State Road network but would remove the frustration, delays and ambiguity, that result due to the blanket application that currently exists around this clause.

If each development site could be considered on its own merits, then it becomes possible to provide a better outcome for the end users resulting in a greater degree of cooperation between Government and industry, which we would welcome. Having greater cooperation would ultimately result in a clearer understanding of the State Government position with regards to development access design, leading to faster approval times.  A potential example outcome is shown below.

Importantly these changes would also contribute towards achieving the zero emissions objectives within the NSW Climate Change Policy Framework 2016 by reducing overall vehicle distance travelled.

In our experience the relevant clauses in this current policy, which were developed in 2007 under the previous labour Government, are no longer applicable or consistent with current transport planning thinking in New South Wales and in that context need a serious rethink prior to the legislated 2023 policy review. 

We hope this article resonates with other professionals and raises further awareness within the NSW State Government and as a minimum, initiates further consideration of this important issue.  This also fits with the recent NSW Government announcement aimed at tackling delays in the planning system.

We are also keen to collate instances where you have been adversely affected by Clause 101-2 (a) to assist in building an evidence base which could be put to the NSW Government to further demonstrate and highlight the impact that this is and has had on the development industry.

In this regard we invite you to share, all examples to This email address is being protected from spambots. You need JavaScript enabled to view it..

For further information or questions regarding this article and PeopleTrans’ experiences related to the above, please contact Alan Stewart or Matthew Houlden on (02) 8226 8760.

 

Author:  Alan Stewart