Environmental Planning and Assessment Bill 2008
Objectives:
This Bill amends the Environmental Planning and Assessment Act 1979 and other Acts and instruments to improve the NSW planning system. The Building Professional Amendments Bill 2008 and the Strata Management Legislation Amendment Bill 2008 are cognate with this Bill.
The expressed intent of the amendments is to simplify, speed up, and make cheaper the processing of development applications and appeals, improver certifier accountability, and also impose greater accountability on Councils in the collection and subsequent application of Section 94 contribution monies.
Comments:
Last year, the NSW Government made headlines with its announcement to reform residential developments across the State, and the proposed overhaul of the NSW planning system since the introduction of the Environmental Planning and Assessment Act in 1979.
Making the announcement on 27 November 2007, Minister Frank Sartor released its long-awaited Discussion Paper on the Planning Reform Agenda, outlining 90 recommended changes to the NSW planning system. The announcement by the NSW Government follows both Victoria’s and Queensland’s announcements to modernise their planning systems. The paper was put on exhibition over the Christmas/New year break, which limited the opportunity for response. The period for public comment on the draft exposure Bill was limited to three weeks. This is totally insufficient to allow detailed examination and discussion of the complicated Bill and supporting documentation by the public and community organisations. Even though 538 submissions were received, Department of Planning officials were given just a week to consider them before the draft legislation was finalised.
The NSW Government released the Draft Exposure Bills on 3 April 2008 setting out the proposed legislation. It seems certain that these reforms will be implemented in an incredibly short timeframe. Public consultation on the Exposure Bill closed on 24 April 2008 – again, a very short period.
The government’s view is that the current planning process is lengthy, complex, and confusing for many users of the system, particularly at the local level. There appears to be broad acknowledgement by all stakeholders that the NSW planning system has become excessively complex. This is in large part the reason for many delays about which the Discussion Paper is concerned. The concerns about the system are also reflected in the poor results for NSW in relevant sections of the Planning Institute of Australia’s 2007 ‘Planning Report Card’, a survey of the planning profession’s own views.
The ‘one size fits all’ approach fails to reflect the importance and level of complexity of different plan making and development assessment processes, often leading to long delays in local government development application processing. As such, although residential development applications accounted for almost 70% of all reported development applications, the average processing time for most local government applications during 2006-07 was 75 days. Onerous delays increase holdings cost through interest payable to financial institutions.
The complexity of the system not only creates difficulties for practitioners in Government, agencies, and consultancies, but also has also increased the potential for errors, disputes, and consequently adversarial relationships between parties, and increased the basis for litigation. Importantly, the multi-tiered system now in place under the Environmental Planning and Assessment Act, including related Acts and regulations, planning instruments, circulars, and local policies is such that active community participation in the planning system (including the “mum and dad” applicants often cited by the Minister) – one of the key objectives of the Act – is inevitably constrained.
Access Economics reportedly estimate that the proposed reforms will save the State $580 million over five years. Recent findings conducted by Auspoll for the Property Council of Australia have found that residents of NSW have a poor impression of the planning approvals process in NSW. Almost half (45%) regard the planning process as poor or very poor and just 7% consider it to be ‘good’.
Another perceived shortfall of the current planning system is that it is not consistent across the State. Since each council is required to develop individual planning controls for their area. It has led to a variety of different approaches to development control and assessment. Due to the lack of consistency, the current system lacks predictability and certainty.
Historically, councils had the sole control of certification, which was seen as slow and inflexible. In 1998, the NSW Government introduced the private certification system which improved timeframes and flexibility, and provided greater choice for persons seeking sign-off for building, subdivision, and minor works. However, these reforms left the system vulnerable to allegations of a lack of integrity and uncertainty over responsibilities.
The proposed reforms seek to change the development assessment system to become more responsive and better tailored to the complexity and significance of the proposal. According to the NSW Department of Planning, the Discussion Paper on the Planning Reform Agenda outlined more than 90 recommendations to improve the planning system, including:
Plans to increase the number of development approvals under compliance certificates.
New targets to reduce the processing times of development applications and local plans.
Allowing more small-scale development, such as home renovations, to be approved within 10 days if set standards are met.
Tailoring development application assessment and local plan-making systems to the size, and complexity of proposals.
Increasing online planning information and support.
Improved oversight of the building certification system.
Reducing the Minister’s determination role for development proposals, and increasing use of assessment panels.
Miscellaneous recommendation in areas such as strata management, paper subdivisions, and dispute resolution.
While identifying a broad range of issues in the current planning system, the main thrust of the reforms is ‘efficiency’. The major reforms lie in proposals to cut red tape in lengthy council development approval processes by expanding the developments subject to certifier approval. The reforms include a set of measurable outcomes, which relate only to timing and process, rather than planning outcomes. The current reforms will lead to a process of risk management, rather than effective planning.
The proposed reforms reduce Council’s role in plan making and assessment while increasing Council’s role in compliance. More of the strategic and larger scale assessment work (with greater impacts on the local community) will be decided by new bodies that do not represent the community, duplicate existing systems, and are likely to increase costs. These strategies will simply exacerbate existing problems, rather than solve them, and increasingly act to reduce the community’s input into decision-making.
Although the proposed reforms have received wide coverage, they are generally being described in most quarters as procedural reforms to speed up the planning approvals process and to customise those processes to suit the scale of development proposed.
There are a number of critical consequences of the reforms which go well beyond matters of procedure, and which demand close scrutiny. Some of the critical consequences of the planning reforms identified are:
Councils set to lose substantial power and control over ‘bread and butter’ development applications
About 95% of all DAs in NSW relate to single residential dwelling houses, and it is proposed that in relation to this category of development (all single dwelling houses, regardless of their cost, and all other residential work up to a capital value of $1 million), applicants will be able to have council decisions reviewed by an outside consultant to be known as ‘Planning Arbitrator’. They will be chosen by the State Government, not the councils. Applicants who are unhappy with a decision of a council will be able to have the decision reviewed by a Planning Arbitrator and, where a council has not made a decision within a short timeframe (probably 30 days), applicants can automatically put the application over to a Planning Arbitrator. The costs will be nominal (a few hundred dollars).
Applicants will be able to amend their DA plans when the matter goes to an Arbitrator. That Arbitrator then must determine the application within a certain timeframe, but the Discussion Paper released in November indicated that it would be 14 days. That is an incredibly tight timeframe given that the Arbitrator will not be familiar with the matter, and the DA plans may have been amended in any event. There is no requirement that neighbours or objectors be involved in the arbitration or notified of it. Lawyers are not permitted to be involved. In short, it will be a very fast decision by an outside consultant. Importantly, only applicants may appeal against a decision of an Arbitrator (an appeal is to the Land and Environment Court).
This is obviously very good news for applicants as it means that they can lodge a DA with a council, seek review of the “deemed refusal” within a very short timeframe (probably 30 days) at minimal cost, which takes the matter out of the hands of the council. The Arbitrator then must make a decision within a very tight timeframe, possibly with amended DA plans that have not been notified to neighbours or objectors, and if the applicant is unhappy with the Arbitrator’s decision they can appeal to the Land and Environment Court, whereas the council cannot.
This sets up a situation where many decisions in a local government area will be taken out of the hands of the local council and the council will have no right of appeal against the decision of the Arbitrator.
Interestingly, Councils must pay the Arbitrators, and must indemnify them for any costs orders made if an applicant successfully appeals against the Arbitrator’s decision in the Land and Environment Court. The council may not even wish to defend the Arbitrator’s decision, but the council will be liable for any costs orders made in the applicant’s favour. In addition, it will be a criminal offence for a council not to assist an arbitrator by producing relevant documents on request or making staff available on request.
This really is a breathtaking loss of power and control to councils in relation to a category of development which, as mentioned above, amounts to about 95% of all DA’s in NSW.
Attempt to prevent legal challenges look set to backfire
There is an express intention in the planning reforms to limit legal appeals and challenges. For example, applicant and developer appeal rights will be slashed down from 12 months to 3 months.
However, in circumstances where Planning Arbitrators must make a decision within such a short timeframe, – probably 14 days – there are bound to be legal errors. Lawyers cannot attend to address the Arbitrator on legal issues relating to a decision, for example on the correct legal interpretation of a planning requirement under the Act or under a Council’s Local Environmental Plan. In those circumstances, the result is likely to be that decisions made by Arbitrators (when they approve a DA) will be susceptible to legal challenge in the Land and Environment Court by dissatisfied neighbours, objectors and even by Councils. Such action is available under s.124 of the Environmental Planning and Assessment Act 1979.
At present these types of challenges are made against councils, however, councils are generally far less prone to legal error, as they may take time to consider applications carefully, and to obtain legal advice where necessary. Lawyers can attend council meetings and advise councils as required. Planning Arbitrators will not have that luxury, and their decisions may well be prone to legal error, opening the floodgates for potential s.124 actions.
There is, however, a proposed provision excusing Arbitrators from any personal liability in relation to their decisions. Therefore, where an invalid decision is made and the decision is overturned, applicants will have no ability to recover damages (delay costs and the like) against the arbitrator.
It also seems likely that objectors will, for the first time, be given a right of appeal to the Land and Environment Court against the approval of certain residential development. However, we are not told when these rights would arise (the detail is left to the Regulations), but it appears that it will apply where significant breaches of numerical planning controls are proposed (a figure of 25% breach has been mentioned).
Lapsing of development consents
At present, a development consent cannot lapse (expire) if it is “physically commenced” within a certain time frame specified in the consent (generally 3 to 5 years). This requires only that some physical works (relating to the consent) be carried out before the lapse date. However, the planning reforms now propose that even where that has already occurred, the development consent will expire if the work has not been “substantially commenced” within a further 2 years. This is a much more difficult threshold, requiring far more comprehensive works to be carried out.
Importantly, this has the potential to catch out a lot of developers and landowners who may have development consents where physical commencement has occurred but the consent has otherwise been left in abeyance without “substantial” commencement of works. For those people, even the additional 2 years that is proposed beyond the ordinary lapse date may already have expired or may be nearing expiration. In those cases, unless they are aware of this proposed planning reform, they may lose the ability to carry out the development.
For example: Developer / landowner has a consent requiring commencement within 3 years. It was issued 5 years ago. Developer carried out physical works prior to the 3 years and obtained legal advice and / or Council signoff confirming that physical commencement is achieved. Developer now has a more valuable site because it can be sold with the development consent for future owner to build. However, the new planning reforms will mean that “substantial” works had to be carried out within 2 years after the original 3-year lapse date (5 years in total). That is now. Therefore, the consent lapses now as “substantial” works have not been carried out. Developer / owner simply lose their development consent.
This amendment does expressly apply to old development consents – there is no savings or transitional provision to protect those consents. Approval via new DA may no longer be permissible at all on the land, depending on the current zoning and planning controls.
Costs in Land and Environment Court proceedings
Another stated intention of the legislation is to deter developers and applicants from taking Land and Environment Court appeals.
Applicants in appeals often amend their plans along the way, to respond to and overcome concerns or issues raised by the Council or objectors. This has generally been said to be an acceptable practice, because it leads to a better planning outcome for the site. The two most recent Chief Judges of the Land and Environment Court (Preston and McClellan) have emphasised that planning appeals should not reflect an adversarial system of winners and losers. Rather, the goal should be to achieve an acceptable outcome for a site in terms of what building or use is approved. The process of amending plans to respond to concerns of councils or residents in the locality is an appropriate means of achieving that.
However, the planning reforms aim to deter applicants from amending plans by introducing a new rule that where an applicant elects to amend its plans in any significant way, it must automatically pay the entire legal costs of the council. Although it is not clear, it seems that this means the costs must be paid on an indemnity basis – meaning whatever costs the Council has incurred, whether or not they are reasonable, they must automatically be paid by the applicant / developer.
For example, if a Council uses 3 senior barristers in Court, their costs must all be paid. Indemnity costs are awarded very rarely indeed in any Court – generally only where one party’s conduct has been reprehensible. They are almost never awarded in the Land and Environment Court. Rather, costs are awarded from time to time, but only on a “party / party” basis, meaning an assessment is made as to what costs were reasonably incurred, and the unsuccessful party pays those reasonable costs only.
Generally at present, where an applicant amends plans, the costs payable are only “costs thrown away”, meaning wasted costs as a result of Council now having to look at new plans.
The proposal to award automatically all costs of the proceedings on an indemnity basis means that applicants will rarely agree to amend a proposal to achieve a better outcome, unless they have deep pockets indeed. Complaints of councils and objectors will be ignored and argued in Court. We will almost certainly see a significant shift back to a highly adversarial system where there is only a win or a loss, but no compromise other than where an applicant has significant financial resources. Alternatively, applicants may be able to amend just prior to lodging an appeal. Advice on this will be needed.
Minister to protect certain decisions he makes from any legal challenge
The Planning Reforms go to the unusual lengths of preventing any legal challenge whatsoever against certain decisions where the Minister has not followed the legal procedure provided for in these very reforms. In those cases, the reforms actually prevent any legal challenge, even expressly overriding challenges on the grounds of “procedural fairness” and “natural justice”.
Challenges on those grounds are almost always available, reflecting the deeply entrenched principle that everybody is entitled to procedural fairness and that decision makers are bound by the laws of natural justice. In this case, the Planning Reforms seek expressly to set the Minister free of those entrenched obligations. It is a highly unusual level of protection for an administrative decision-maker.
The Bill is seriously flawed in key areas and I have been deeply concerned that public consultation on these major changes to planning in NSW has been inadequate. There is tremendous concern among local councils and their communities that these proposed laws are being rushed through without proper consideration of their impacts. They represent the most substantial changes to the planning system in decades, and there are fears they will give undue power to developers at the expense of local residents.
I will now examine the implications in detail and address the current problems with the Bill.
Land use and plan making
Proposed changes to plan making procedures are cause for serious concern. I support the proposal to tailor the Local Environment Plans (LEPs) process to the scale, risk, and complexity of the land use change using a gateways screening system. However, the streaming pathways and screening and evaluation criteria should be developed with input from local and state government agencies. The draft Bill provides for public comment on proposed Local Environment Plans (LEPs) only at the ‘gateway’ stage. This represents a serious diminution of public participation in the process of producing LEPs. I strongly believe that public comment should be required at both LEP gateway stage and on the final proposed LEP instruments which can have very significant implications.
I oppose the proposal to provide the Minister with the power to determine that no consultation is required at the gateway stage of so-called ‘minor’ plans . This would allow plans to be made in the absence of any public consultation. This discretion should be removed from the Bill.
I also believe that mandatory timeframes should apply to all state agencies, including at the gateway stage, and also apply to Parliamentary Counsel advice. While the proposal to provide a legal drafting service has Merit, Councils should have an ability to review LEPs following legal drafting to ensure that the original intent is maintained.
The proposal that the Department of Planning dictate the ‘content’ of Development Control Plans (DCP) is not supported other than to ensure consistency with an LEP or State instrument. Moreover, the status of DCPs needs to be raised to give them greater authority to complement the statutory instrument.
Development Assessment and Review
The introduction of the Planning Assessment Commission (PAC) and Joint Regional Planning Panel (JRPP) would be adding another and different level of bureaucracy, which may not have the knowledge of the critical issues for the Council area.
It is difficult to see how the implementation of Independent Hearing and Assessment Panels (IHAPs) would simplify, streamline, and speed up the DA assessment process, as it would be adding yet another costly and time and resource consuming layer to that process which is only consultative in nature.
The proposed use of ‘planning arbitrators’ to simplify the appeals process is unlikely to achieve the objectives of reduced delays, costs and litigation if it will take 38 days for an arbitrators to make a determination and it will still be open to the Court to allow appeals after considering the arbitrator’s determination. The Discussion Paper makes no mention of how it is proposed to improve and streamline the appeal process for development applications exceeding $1 million in value.
I have strong reservations regarding proposed changes to development assessment. The changes create the opportunity for these bodies to be effectively ‘stacked’ in order to favour developer interests. The absence of any provisions preventing such stacking and ensuring that these bodies include persons with expertise in planning and environmental management is a significant flaw in the proposed legislation.
However, the following proposals are supported: simplifying of the DA lodgement requirements and the streamlining integrated referrals and concurrences, as well as the statutory deemed refusal periods, based on the value or complexity of development proposals.
Appeals Processes and Increased Complexity
The draft Bill increases the complexity of the planning system and creates the likelihood of competition between the Planning Assessment Commission, Joint Regional Planning Panel, and the Land and Environment Court as well as the forum shopping of developers seeking the most favourable outcome. I believe that the Court should remain the ultimate decision maker in matters of development assessment. The creation of competing forums, each capable of creating their own precedents, creates the strong likelihood of inconsistency in determinations.
The introduction of a new system of review bodies as mentioned above will not facilitate the improvement of decision making by such bodies. It will not represent community views on development, nor will it have the rigour, independence and consistency of a Court system. Arbitrators and panel cannot have the same level of independence as a Court because arbitrators and panel members will be on short-term contracts, do not have established systems to ensure fairness and transparency and, in many cases, members will be combing work for developers with sitting on review appeals part-time. The appointment and removal of proposed planning arbitrators and JRPP members on a part-time basis by the Minister represents corruption risk. This additional level of appeals is unnecessary and unfairly biases the system in favour of developers. This is likely to have the undesirable consequence of eroding public confidence in the planning system in NSW.
Exempt and Complying Development
While it is agreed that there needs to be an increase in the amount of development that can be exempt or assessed as complying development, a 50% target is too large and ignores the complexities of achieving good planning outcomes. Moreover, the inclusion of performance based measures in complying development codes is not supported as it would complicate the approval system and not provide certainty to an applicant lodging an application with Council or PCA.
A further key concern is the issuing of ‘Provisional Complying Development Certificates’. The Bill would allow private certifiers to approve developments as complying development where there have been so called ‘minor variations; from development codes. This provision is misleading, open to abuse, and puts undue pressure on Councils to do a merit assessment (similar to a DA) within 7 days.
Furthermore, the draft Bill will allow complying development in environmentally sensitive areas, repealing a current protection. I believe that there should be no provisions for complying development in such areas. Any proposed development in environmentally sensitive areas should be subject to environmental assessment and development consent.
Development Contributions
Funding of Section 94 contributions are critical to the social capital of any community, it is the glue that holds communities together, and what makes decent communities worth living in. These include local facilities like libraries, aged care, community centres, playgrounds, and local roads.
Development contributions levied by councils have been renamed community infrastructure contributions and now compromise of ‘direct contributions’ and ‘indirect contributions’. The Bill also introduces a two-tier system that limits the use of community infrastructure contributions to funding ‘key community infrastructure’. Contributions can be levied for ‘additional community infrastructure’ only if approved by the Minister. Councils must provide a business case or an independent report to the Minister when requesting approval as additional community infrastructure.
I welcome the State Government’s concession on councils being able to levy contributions to part of the cost of upgrading or building district or council wide facilities, although the wording of the Bill and the lack of detail about the types of projects that can be funded is still of concern.
However, I oppose the wide ranging and discretionary powers given to the Minister to direct councils’ collection and use of development contributions; the Treasury control over Growth Centre councils’ funds from development contributions; and the lack of a formal mechanism for determining levies in greenfield release areas with significant potential for State levies to ‘crowd out’ local levies.
Private certifiers
I support the Government’s efforts to increase accountability in certification. However, the proposed reforms demonstrate a failure to understand the on-ground impacts of the identified issues, and will reduce the accountability of private certifiers rather than increase it. There are grave concerns about the effects of proposed section 109PA and increasing the role of certifiers consequent on the expansion of ‘complying development’. Neighbouring property owners will be unfairly disadvantaged.
Limiting the number of Construction Certificates issued by individual companies to any one builder/developer appears to be an unfair trade restriction and would no doubt foster cartels to operate within the developer/certifier field. Also, having the Building Professional Board (BPB) allocate the accredited certifier for large or complex buildings appears to add another layer of unnecessary bureaucracy.
Private certifiers will approve only conforming developments, and certifiers will be subject to tougher regulation. Yet the faster the approval, surely the less time for the development to be scrutinised and objections made. The public will rightly reject a planning overhaul that reduces the amenity of their homes, their streets, and their neighbourhoods.
There is already long queue of residents burnt by private certifiers approving building work that was incomplete, unsafe or defective and this will arise due to the State’s planning laws now before the House. Making the approvals process simpler, faster, and cheaper is not enough; it must improve an already unreliable approvals process – or the very least, make it no worse.
Loss of community consultation
I note a fundamental shift in the government’s attitude towards community involvement and broad public participation. Opportunities for the public to participate in planning processes have been significantly eroded, primarily in part 3A. There appears to be a perception that community participation is an administrative and bureaucratic burden rather than a process that can add much value to decision-making. Indeed, genuine public participation adds significant value to government decision-making. This is for three main reasons:
First, community participation helps to ensure that better decisions are made, as the views of all stakeholders are taken into account. This leads to improved decision making because the knowledge of the public is incorporated into the calculus of the decision.
Second, public participation ensures the buy-in of the community as people are more likely to accept decisions if they have been given a proper opportunity to be heard.
Thirdly, public participation helps to ensure fairness, justice, and accountability.
The Environmental Planning and Assessment Act 1979 should be amended to substantively reinstate public participation as the cornerstone of the NSW planning system.
The failure to advance environmental sustainability
The Bill contains no provisions that advance environmental sustainability or improve the quality of environmental assessment in planning decisions. In fact, the Bill will weaken many key protections contained in the present legislation, particularly in relation to environmentally sensitive areas and contains reduced safeguards for public involvement.
Environmental assessment under Part 3A is ad hoc, discretionary, and unstructured. There is no clearly defined environmental framework within which decisions are to be made. Further, although Parts 4 and 5 of the Act do contain a clearly defined and mandatory process of environmental assessment. There are four key problems with the environmental assessment system in the Act are identified below:
First, the scope and extent of the environmental assessment to be undertaken by a proponent under Part 3A is solely within the Director-General’s discretion because there are currently no criteria the Director-General must have regards to in setting the environmental assessment requirements.
Second, although the Director-General is required to consult with other agencies such as the Department of Environment and Climate Change under Part 3A, and to have regard to the issues they raise, the failure to do so may not necessarily invalidate an approval.
This means that important environmental decisions such as pollution, heritage, water and threatened species are potentially subject to insufficient or basic assessment. These inter-agency approvals and consultation requirements constitute important safety nets, and help to ensure that all the potential impacts of a development are adequately considered when the Minister makes his decision.
Third, Part 3A allows for the approval of concept plans, which contain only the basic details of the project. This makes the effective assessment of these projects difficult, or even impossible, since the breadth of the environmental effects of the projects is unclear.
The problems mentioned represent a major flaw in the draft legislation and a lost opportunity to improve environment sustainability in NSW planning. The quest for increased efficiency must not be pursued at the cost of sustainability and good environmental outcomes, which should be the cornerstone of any best practice planning system.
Conclusion:
In conclusion, the laws will: add more layers of red tape and cost ratepayer’s million of dollars to implement, take decision away from local communities, and impact on councils’ ability to provide crucial services. As a result, there are questions over the motivation for the Government’s changes to the NSW planning system, which are being rushed through and with disregard to the views of communities, councils, and other stakeholders – who will have to live with the implications and impacts of the changes.
The vast majority of NSW residents have no idea how their homes will be affected by sweeping changes to the State’s planning laws. The Auspoll survey found that 71% of people had “not heard anything about proposed changes to planning laws that will shift power from local councils to property developers.
Although genuine reform is required to improve certainty, transparency, and timeliness; proper consideration must be given to the laws with a view to making them more workable and equitable for all stakeholders in the planning process. While some reforms may be desirable, they are relatively minor and the existing laws protect the community far better than the proposed Bills.
Many of the State Government’s proposed changes to planning will have far reaching implications for local communities; the view of relevant stakeholders have been ignored; and that private companies and developers stand to significantly benefit from the new laws.
I am deeply concerned about the impacts the new planning laws will have on local communities as communities will lose their right to participate in local planning issues and essential funding not be taken away. Many other industry and community bodies shared these views. Local councils are greatly concerned that these reforms will take control away from local residents and add more layers of red tape to the planning process. Local residents deserve the right to have a say over local developments, and these laws are stripping away those rights.
Our communities has not been given significant time to really digest the changes and what it means for them. As stated before, there are problems with the planning system, but I think these reforms will make planning even more complex and will very much favour the big end of town and those wanting to do development at the expense of those “mums and dads” who will be left with the consequences of inappropriate development.
In view of the serious problems with the Bill addressed in this speech and the lack of adequate public consultation, I believe that a detailed scrutiny of the Bill and its full implications is required. This matter is too important and the implications to our communities too great for changes to be rushed through. We cannot haste towards enacting legislation that will have the most far-reaching changes to the State’s planning system in 30 years.
Therefore, I support the Opposition’s decision to call for an Upper House Inquiry into the Government’s planning reforms to properly review the implications of the proposed changes, hear from all affected stakeholders, and to consider the total reform package before any substantive changes to the legislation are enacted.