Planning laws

Key issues with proposed planning system

NSW Government Planning Review

Upcoming forums of NSW Government’s Planning Review

BPN Speaker Training Session

10.30am-12pm on Saturday 1 June 2013

At the Nature Conservation Council of NSW, 2/5 Wilson St, Newtown (1 block from the Newtown train station)

Speakers: Corinne Fisher, Convenor BPN and Kate Smolski, Campaigns Director NCC

Cost: Free but please RSVP by 29 May 2013 to Better Planning Network.

Briefing note and key issues summary 

This briefing note outlines proposed changes in the NSW Government’s major policy document, A New Planning System for NSW – White Paper (April 2013) (White Paper), and was prepared by EDO NSW. It gives a preliminary EDO NSW perspective on key issues and follows a previous EDO NSW briefing note and submission on the Planning Green Paper (2012).

EDO NSW’s comments are based on  extensive experience as a professional independent, not for profit community legal centre specialising in public interest environmental law.

1. Executive summary

The new, narrow definition of ‘sustainable development’ will be a significant step backwards for environmental and social considerations if enshrined in the new Planning Act. Broad commitments to ‘facilitate [economic growth] in an environmentally and socially sustainable manner’ (p 5) and the language throughout the White Paper consistently prioritises growth and economic considerations, instead of a truly integrated focus on the legally recognised principles of ecologically sustainable development.

The Community Participation Charter is a welcome inclusion in the Bill; but many of the concrete details to implement the Charter have been left to the development of future Community Participation Plans and guides. The Charter is a much-lauded centrepiece of the White Paper, however, the draft legislation reveals that the Charter will be very difficult, if not impossible to enforce – as Community Participation Plans will not be mandatory, and the community will not be able to challenge plans and some decisions, including legal errors.

The White Paper’s strategic planning principles do not deal with improving or maintaining environmental outcomes, assessing cumulative impacts or preparing for climate change. It is unclear whether the previous proposal for ‘a clear NSW Planning Policy focused on the achievement of natural resource outcomes’ and integration of targets has been abandoned, or divided into other Planning Policies on the environment or agriculture.

The commitment to retain existing environmental protections (that are currently in State Environmental Planning Policies – SEPPs) is supported. However, the White Paper still provides limited concrete detail on how the environment will be protected at the strategic level, at the point of development assessment and decision-making, or by monitoring and reporting indicators.

The proposal to invert the development assessment system – from categorising 23% of development as exempt and complying now, to requiring 80% of development to be code- assessed or exempt and complying within 5 years – will mean significant limitations for neighbours wanting to have their say.

The White Paper and legislation do not mandate accreditation of environmental assessment consultants at this stage, though the proposal has strong community support.

Open standing to bring civil enforcement has been nominally retained. However, contrary to the expressed intention of the White Paper, open standing could be seriously undermined by provisions in the draft legislation. Part 10 of the Planning Bill 2013 appears to severely curtail the public’s ability to challenge legal errors of decision makers in the Land and Environment Court – in fundamental areas such as community participation, strategic plans and state significant development approvals. EDO NSW is currently seeking further legal advice on this critical issue.

The imbalance of review and appeal rights and participation between developers and community members will continue to limit community confidence in the system.

A positive development in the White Paper is the proposed criminal enforcement model for the new planning system. This includes a tiered system of criminal offences similar to NSW pollution laws (Protection of the Environment Operations Act 1997), and a range of specific orders available for criminal enforcement (White Paper, pp 146-47).

2. Background

The NSW Government released its Planning White Paper on 16 April 2013, along with two exposure draft bills (draft legislation) for 10 weeks consultation. The White Paper sets out the Government’s vision for a new planning system, to replace the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). The White Paper and draft legislation are open for consultation, submissions and online comment until Friday 28 June.

2.1 What will these changes mean for your community?

These reforms are the biggest overhaul of environmental planning in NSW since 1979 – soit’s important that as many people as possible give feedback on the proposals. The consultation period is a valuable opportunity to comment on things like:

  • what development can happen in an area (from houses to mines) and who gets a say
  • how suburbs, towns and cities are planned (transport, shops, offices, parks, schools)
  • how our communities manage growth and change, and balance needs and interests
  • how developers and governments have to consider and protect the environment.

Note: Further information on how you can be prepared, get involved and make a submission on the Planning White Paper is at the end of this web page.

2.2 What happens next?

The most important thing until 28 June is to read information about planning from a range of sources, attend local forums where possible, reflect on what you like and/or don’t like about the present planning system and prepare a submission on the issues that are important for you and your community. After this White Paper consultation, the Planning Minister intends to introduce legislation enacting the proposed reforms later in 2013. The new system will only take effect once Parliament has passed the legislation and a start date is proclaimed. The new system will probably begin early in 2014, but some parts will carry over and adapt aspects of the existing system for a time.

3. Overview and Analysis

The White Paper (pp 6-9) adopts six main themes:

  1. Delivery culture – for ‘the delivery of positive and pragmatic outcomes’, ‘a commitment to ongoing education and innovation’, and regular performance reporting
  2. Community participation – involving people ‘in the preparation of plans and the vision for their local areas’, including the ‘ground rules for local areas…’
  3. Strategic planning focus – ‘a major shift to evidence based, whole of government strategic planning in the development of plans, community and stakeholder engagement and decision making’ upfront.
  4. Streamlined development assessment and approval – a new five-track ‘performance based system’ which ‘makes greater use of code complying development and online tools, and removes layers of assessment…’
  5. Provision of infrastructure – ‘Planning for infrastructure… at the same time as planning for housing and jobs…’. Includes new ‘Growth Infrastructure Plans’ and ‘simplified’ local and regional infrastructure contributions.
  6. Building regulation and certification – ‘to ensure better quality of construction and fire protection over the life of buildings.’ However, there are no proposals to update the BASIX building sustainability tool, which has not been updated since 2006.

EDO NSW’s initial views on key White Paper proposals are outlined below. Their main focus is on two issues – community participation and protection of the environment. Both are critical to public confidence in, and enduring success of, the new planning system.

3.1 Aims and objectives

Overview

The White Paper and Part 1 of the Planning Bill 2013 propose that the new planning system will aim to promote economic growth while balancing social and environmental factors.3 The nine objects for the new Act include ‘economic growth and environmental and social well being through sustainable development’.4 The Planning Bill also says:

Sustainable development is achieved by the integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development. (clause 1.3)

Preliminary analysis of aims and objectives

  • The new, narrow definition of sustainable development is a significant step backwards for environmental protection. The planning system needs to implement ecologically sustainable development and its principles, not a watered-down concept of integrated decision-making. The imbalance of the new objective is exacerbated by the introduction of additional economic considerations (such as economic viability tests) throughout the White Paper.
  • It is very concerning that the White Paper and the Planning Bill remove any reference to ecologically sustainable development (ESD). The White Paper only briefly refers to two ESD principles – ‘integration’ of economic, social, environmental factors, and consideration of ‘present and future needs’. At the same time, it removes reference to three fundamental principles that underpin ESD as enshrined in Australian law:
    • the precautionary principle
    • biodiversity and ecological integrity as a fundamental consideration
    • improved valuation, pricing and incentive mechanisms (including the polluter pays principle).
  • The Planning Bill has numerous objects, and no hierarchy between them, leaving wide discretion for decision makers. ESD should be the overarching object of the planning system and the new Planning Act. ESD principles should also be applied by decision makers under the Act, to ensure this object is given effect in practice.

Note: In brief, the draft objects in the Planning Bill (clause 1.3) relate to: (a) ‘economic growth and environmental and social well-being through sustainable development’; (b) community participation; (c) infrastructure; (d) ‘timely delivery of business, employment and housing opportunities’; (e) environmental protection (including threatened species, built and cultural heritage); (f) agricultural and water management; (g) health, safety and amenity in building design and performance; (h) ‘efficient’, ‘timely’ and ‘proportionate’ development assessment ; and (i) shared responsibility between governments for planning and ‘growth management’.

Note: In brief, the precautionary principle is triggered if there is a risk of serious or irreversible harm to the environment, and there is scientific uncertainty as to whether that harm will occur. In such cases, the precautionary principle requires the developer or proponent to demonstrate its activities are sufficiently safe.

3.2 Community participation

Overview

A Community Participation Charter is the centrepiece of the White Paper’s approach to community participation, and is set out in Part 2 of the Planning Bill. The Charter set outs seven high level principles contained in the draft legislation (clause 2.1). In brief, these relate to: Partnership; Accessibility;  Early involvement; Right to be informed;  Proportionality; Inclusiveness; and Transparency.

The emphasis is very much on up front consultation. The White Paper states:

“Once the community has participated in the development of the strategic plan for the area, planning authorities can streamline most development assessment without the need to further consult with communities unless proposals significantly depart from standards in the Local Plan.”

The Charter is to be given practical effect via Community Participation Plans. These are to be prepared by each planning authority (the body which makes decisions on strategic plans and development applications) in consultation with the community. The Planning Department will also prepare Community Participation Guidelines to assist planning authorities (such as the Planning Assessment Commission, Regional Planning Panels, Subregional Planning Boards and Local Councils) to develop their Plans. The key legislative requirement relates to proposed minimum exhibition periods.

Preliminary analysis of community participation

  • A legislative basis for community consultation in the planning system, including a Community Participation Charter, is strongly supported. However, as drafted, the Charter will be difficult if not impossible to enforce.
  • There are several aspects of the shift to upfront community participation which are problematic – namely:
  • The specifics of consultation requirements are left to future Community Participation Plans. The Bill indicates that these Plans are not mandatory and cannot be challenged.
  • There is a real danger of overburdening the community. It is difficult to expect general members of the public to be involved in a series of individual consultation processes on state, regional, sub-regional, local plans and detailed code development – in order to have a say upfront on hypothetical future development. If this approach proceeds, significant additional resourcing, expertise, oversight, and community review and appeal rights will be essential.
  • This shift has been accompanied by a removal of checks and balances. For example, community rights to be consulted or to object to decisions will be been significantly reduced once strategic planning processes are completed.

3.3 Strategic planning

Overview of strategic planning principles

The White Paper and Part 3 of the Planning Bill propose 10 principles to inform strategic planning outcomes and processes.9 Several principles deal with appropriate governance measures.

In brief, these 10 draft strategic planning principles, to be made in legislation, relate to:

  1. Sustainable development (to promote the State economy and productivity)
  2. Integrated infrastructure
  3. Streamlined development assessment (strategic plans to guide all decisions by planning authorities)
  4. Early community participation opportunities
  5. Government agency collaboration (consent authorities and state agency co-operation)
  6. Top down ‘line of sight’ (consistency from NSW Planning Policies down to Local Plans)
  7. Accessibility (strategic plans to be standardised, easy to use, available online)
  8. Monitoring and reporting
  9. Evidence based plans, realistic targets, and triple bottom line considerations.
  10. Simple controls, consistency and economic facilitation (facilitate development consistent with agreed outcomes, avoid complexity and onerous controls that affect financial viability).

Note:The White Paper (p 69) gives an ‘indicative list’ of potential policy topics: housing supply and affordability, employment and economic growth, environment and conservation, agricultural and rural resources, energy and resources, ‘hazards’ (including bushfire, flooding and coastal hazards), and infrastructure. Unlike the Green Paper (p 35), the White Paper does not refer to a NSW Planning Policy ‘focused on the achievement of natural resource management outcomes’.

The White Paper provides further detail on the proposed four-level hierarchy of strategic planning instruments. Each type of plan will have a minimum public exhibition period (28 days), a common structure, and must be consistent with those plans above it. These plans are:

  1. NSW Planning Policies
  2. Regional Growth Plans
  3. Subregional Delivery Plans
  4. Local Plans.
1. NSW planning policies

Eight to 12 of these policies will be developed for key policy areas in time for the planning laws to enter Parliament. They will:

  • set out objectives and direction to guide land use, development and strategic planning across NSW;
  • be endorsed through Cabinet and made by the Planning Minister;
  • be ‘certified’ as consistent with the new Act’s objects and principles;
  • give effect to strategic aims of existing State Environmental Planning Policies (SEPPs), Strategic Regional Land Use Plans and Section 117 Directions;
  • be implemented via regional, subregional and local plans.
2. Regional growth plans

These plans outline strategic objectives, policies and actions for regional or metropolitan planning over a 20-year period. They will:

  • apply to all areas of NSW (with added detail where there is no subregional plan);
  • deal with vision, spatial planning, housing, employment, environment and natural resources, infrastructure, subregional outcomes, and monitoring and reporting; o incorporate ‘relevant aspects’ of existing regional plans and strategies;
  • be led by the Planning Department and a new Chief Executive Officers Group;
  • involve ‘significant’ community, state agency and local council collaboration;
  • be ‘underpinned by a detailed evidence base’.
3) Subregional delivery plans

These plans ‘provide the delivery framework for Regional Growth Plans’. They will:

  • identify (and rezone) ‘precincts’, and areas of State or subregional significance;
  • set development parameters and building envelopes in nominated subregions;
  • integrate infrastructure and land use planning via ‘Growth Infrastructure Plans’;
  • be prepared by Subregional Planning Boards (Boards) – but be endorsed by whole of government and made by the Planning Minister, ‘with advice’ from the Boards;
  • involve ‘strong community participation’ (to be outlined in the Boards’ Community Participation Plans) and state agency collaboration;
  • be completed within two years of the new legislation commencing;
  • be underpinned by evidence from ‘sectoral strategies’ and ‘tested with respect to their economic viability’ (such as for housing and jobs).
4) Local plans

These plain English plans will replace Local Environmental Plans (LEPs). They will:

  • be the main legal document that ‘delivers the strategic vision for a local government area’, consistent with higher-level plans;
  • include 4 parts: Strategy, Planning Controls, Development Guides, Contributions; o set out zoning in visual planning controls based on fewer zones (from 36 to 13);
  • set out ‘development guides’ with more detailed standards to address impacts and intensity (which will use a ‘building envelopes’ concept rather than numerical standards relating for example to height and floor space etc);
  • guide development, and facilitate the majority of development to be assessed according to Codes, with some assessment on the merits where development does not meet Code standards;
  • identify remaining concurrences, and give local effect to parts of existing SEPPs.

Preliminary analysis of strategic planning principles

Strategic planning principles

The 10 strategic principles make no reference to environmental or natural resource management (NRM) outcomes, cumulative impact assessment, climate change preparedness or urban sustainability. Principles 1, 3 and 10 prioritise economic growth considerations at the expense of social and environmental outcomes.

NSW planning policies
  • NSW Planning Policies will set critical standards for lower-level strategic plans. However, the White Paper includes no concrete details on the content of these policies (beyond illustrative themes), how competing objectives and conflicts will be prioritised, or how consistency of lower-level plans will be measured and certified.
  • If the NSW Planning Policies do not adequately protect the environment and foster social outcomes, subsequent strategic plans will be ‘locked in’ to growth-driven policies rather than a more balanced approach to ESD.
  • These Policies are not disallowable statutory instruments (ie, subject to parliamentary scrutiny like SEPPs) nor subject to judicial review. This lack of accountability will decrease community confidence in the system.
Regional growth plans
  • Regional plans should provide for balanced and ecologically sustainable development that promotes community wellbeing. We welcome the inclusion of ‘Environmental and Natural Resources’ as a section of Regional Growth Plans (p 75), but detail is limited and the approach is discretionary (for example, they ‘may include’ environmental targets).
  • Regional plans are not explicitly required to incorporate aims and targets of environmental policies, including native vegetation targets, biodiversity strategies, greenhouse gas and other pollution limits. Effective strategic planning needs to integrate state Natural Resource Commission targets; regional Catchment Action Plans; and councils’ biodiversity and NRM strategies.
  • EDO NSW is concerned that community members may be unaware of parallel consultations that have already commenced on regional planning documents that will become, or inform, ‘Regional Growth Plans’ under the new planning system (such as the Draft Metropolitan Strategy for Sydney and the Lower Hunter over the next 20 years – Discussion Paper).
Subregional delivery plans
  • Subregional Delivery Plans should build in urban sustainability, climate change responses, and a triple bottom line focus in the proposed sectoral strategies.
  • Subregional Planning Boards should exercise their functions to achieve ESD, as the new overarching planning objective.
  • There is a significant level of State control in shaping these strategies, including appointing Subregional Planning Board members (alongside local council members). With the addition of state growth targets and NSW Planning Policies, the level of local control and community influence over subregional strategic planning remains unclear.
Local plans
  • Given the ‘line of sight’ through cascading levels of strategic plans, the new system needs to minimise the risk of top-down determinism, where local preferences are shoe-horned into pre-set State priorities.
  • The White Paper’s new approach to zoning (ie, fewer, broader zones) and development guides requires further explanation and analysis, particularly the implications for sensitive environmental and heritage assets, and local government areas which do not ‘fit the mould’.
  • Spot rezoning, new developer review rights, and ‘strategic compatibility certificates’ will also affect Local Plans’ effectiveness, and have the potential to undermine strategic planning processes.

3.4 Development assessment

Overview

The White Paper and Part 4 of the Planning Bill set out the proposed approach to development assessment. This will be guided by seven key principles, emphasising strategic consistency; a streamlined, risk-based approach to assessment and inter-agency concurrences; and preferring expert-based decision making.

Development applications will be streamed into five assessment tracks, based on the level of risk and impact of a development:

  • Exempt and Complying tracks are familiar, but are proposed to be expanded. Most complying developments are to be approved in 10 days, with ‘minor variations’ approved within 25 days.
  • Code assessment is new and transformative:
    • mandatory target of 80% code, exempt or complying development in 5 years; o upfront community agreement sought on code types and content;
    • 25-day time limit on code-based assessment and approval by local councils;
    • no consultation rights on code-compliant development (notification only);
    •  local councils cannot refuse code-compliant development;
    • flexibility for merit assessment and consultation if code standards exceeded;
    • only non-compliant aspects to be merit assessed, not the whole development.
  • Merit assessment is development that is not streamed into any other track, such as:
    • proposals with ‘significant adverse impacts that cannot be code assessed’;
    • proposals that are permissible with consent, but outside a zone’s core uses; o proposals that ‘may not fully align’ with strategic plans or performance criteria.
  • Local development proposals in this track will be assessed against the following:
    • consistency with the strategy component of the plan, and the zone objectives; o community submissions;
    • the likely impacts, including environmental, social and economic impacts;
    • whether any significant adverse impacts on adjoining/adjacent land are likely;
    • the public interest (‘in particular whether any public benefit outweighs any adverse impact of the development’) – which the White Paper says will be ‘assessed against sustainable development objectives’ (limited to integrating social, environmental and economic objectives) and cumulative impacts.
  • Impact assessment (‘EIS-assessed’) will replace designated development, for proposals with high environmental impacts such as mining and waste management. This category ‘will always be merit assessed’ based on Environmental Impact Statements (EIS).
  • Prohibited development (this can still be overturned by applying for ‘spot rezoning’).

In addition to these five tracks:

  • State Significant and Regionally Significant Development will continue (subject to revised decision criteria and reduced concurrences – see White Paper pp 134, 138);
  • State Significant Infrastructure may be renamed ‘State Infrastructure Development’;
  • Critical State Significant Infrastructure is replaced with ‘Public Priority Infrastructure’.

Preliminary analysis of development assessment

  • The White Paper’s assumption that 80% of developments can be code-assessed without any significant or cumulative environmental impact has no evidentiary basis.
  • Codes must be excluded from areas of high conservation value, environmental sensitivity and cultural heritage significance; and must deal effectively with interfaces.
  • The combined effect of broader zoning, greater code assessment (including the 80% target, ‘mandatory’ approvals, and compartmentalised merit assessments), and new review and appeal options for developers, will tip the balance further away from community involvement, environment protection, and local influence in decision-making.
  • A proposed NSW Planning Policy on Development Assessment (including prescriptions for Code Assessed development) may also limit council and community influence.
  • Consultants who prepare environmental impact statements are still not required to be objectively accredited.
  • Despite references in the White Paper, there is no legal requirement in the Planning Bill to consider cumulative impacts or sustainable development in assessment decisions.

3.5 Streamlining environmental referrals and concurrences

Overview

The White Paper reduces requirements to obtain inter-agency concurrences and approvals in the new planning system (these are usually imposed to ensure compliance with related laws, which are often for the protection of the environment or cultural heritage). The White Paper outlines a three-stage approach:

  • a four-month, internal government review of concurrences (due mid-August);
  • remove or replace unnecessary or straightforward referrals, concurrences, approvals;
  • establish a ‘one stop shop’ within the Planning Department for remaining referrals.

Preliminary analysis of streamlining environmental referrals and concurrences

  • The concurrence review should involve consultation, transparency and clear reasoning.
  • Concurrence requirements must be reinstated for State Significant projects, and retained for any proposal involving a significant environmental impact or cultural heritage issue.
  • The White Paper lacks any real detail about how Aboriginal cultural heritage will be protected under the new planning system.
  • We are concerned that the ‘one stop shop’ prioritises speed of approval over expertise.

3.6 Merit appeal and decision review rights

Overview

The White Paper suggests that appeal and review rights will be largely unchanged. However, as noted, Part 10 of the Bill seeks to significantly restrict the community’s ability to bring court proceedings to challenge plans and some decisions, including legal errors.

Objectors will continue to have merit appeal rights against ‘impact’/‘EIS-assessed’ development approvals, to be exercised within 28 days (as currently for ‘designated development’). However, appeal rights will continue to be removed for State Significant Development where the Planning Assessment Commission holds a public hearing.

Development proponents will retain recently established review rights against a decision to refuse ‘spot rezoning’, and will have appeal rights against a Council’s failure to approve code-assessed development within 25 days. There will also be a new ‘very fast track’ for small-scale housing appeals, and an expanded range of appeals will now be streamed into mandatory conciliation-arbitration.

Preliminary analysis of merit appeal and decision review rights

  •  Community confidence in the system will be significantly undermined by the removal of rights to challenge plans and some decisions. The restriction of third party rights is contradictory to the language of the White Paper regarding the importance of transparency, accountability and community consultation.
  • Developers will have less incentive to get involved in strategic planning if they know they can ‘push the envelope’ through review and appeals, without corresponding rights for community involvement.
  • The new planning system should provide an expanded role for the public in conciliations, and more equitable appeal rights for objectors (such as for projects that significantly exceed code-based standards but are approved ‘on merit’; and Planning Assessment Commission approvals, whether or not a public hearing is held).
  • The continued imbalance of appeal rights between developers and community members will continue to undermine community confidence in the proposed system.

3.7 Infrastructure and building regulation

The White Paper and the Planning Bill also detail other reforms in relation to provision of infrastructure (Chapter 7 and Part 5) and building regulation and certification (Chapter 8 and Part 8). EDO NSW welcomes aspects of these reforms such as improved integration of infrastructure and planning, and improvements in building certification and compliance. Our full submission will outline concerns we have on these issues where relevant to the public interest in environmental protection and community participation. For example, we will analyse the level of community consultation on infrastructure planning as compared with other proposed strategic planning processes, the lack of urban sustainability and building efficiency considerations, and comment on the use of ‘biodiversity offset’ contributions.

4. Next Steps

The NSW Government advises that individuals and groups can make submissions by:

  • Sending an online submission (including attachments) by Friday 28 June 2013
  • Using the online feedback tool to comment on specific parts of the White Paper
  • Posting a submission to New Planning System, GPO Box 39, Sydney NSW 2001.

The NSW Department of Planning and Infrastructure (DOPI) has set up a number of other ways to join the discussion:

  • Visit the online discussion forums at Have Your Say
  • Attend one of the few briefings, feedback sessions and meetings being held across NSW
  •  se the Meeting In A Box toolkit to hold your own meeting and provide feedback.

Here are some other ideas from EDO NSW:

  • use this briefing note, and submission guides from community groups or the DOPI to inform your own submission
  • attend an EDO NSW White Paper event or visit our website for further resources
  • start a conversation with friends or a neighbour group about the new planning system
  • contact your Local Council and ask if they are holding community forums or briefings
  • comment on draft strategies such as the Draft Metropolitan Strategy for Sydney and the Lower Hunter over the next 20 years Discussion Paper (these will become, or inform, the ‘Regional Growth Plans’ under the new planning system).

For further information please contact EDO NSW.

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