Allens

Environment & Planning

Focus: The new NSW planning system – planning and zoning

28 August 2012

In brief: The NSW Government is substantially overhauling its planning system, providing developers with greater certainty and fewer risks. In the first of a three-part series, Partner Paul Lalich (view CV) and Lawyer Dennis Smith examine the implications the proposed new planning system will have on environmental plans and the way land is zoned within NSW.

How does it affect you?

  • The NSW Government is reforming the processes by which future development is planned and controlled.
  • The new system will provide developers with greater certainty and fewer risks when seeking development consent.
  • Developers will also have greater flexibility when proposing development that is consistent with the strategic plans adopted by the Government.

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Background

In mid-2011, the NSW Government commenced a comprehensive review of the state's planning system. The review is addressing the complexity, costs and delays associated with the current system. It is also addressing economic and social issues such as the supply of affordable housing and the need for commercial and retail premises.

This review process is ongoing and will culminate in new legislation replacing the Environmental Planning and Assessment Act 1979 (the Act that has regulated development within NSW since 1980). The Government's recently released Green Paper outlines the proposed new planning system, which will substantially replace the system of planning controls within the state.

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The key features of the proposed NSW planning controls

The key elements of the proposed new planning system are as follows:

  • Public participation – the public will be heavily involved in the formulation of the detailed strategic plans that will comprise the new planning system. Once these plans are in place, a development application that is consistent with these plans will require less public consultation. This will provide a great deal of certainty to proponents of development.
  • A new system of planning controls and policies – the new planning system will have four levels of planning documents:
    • NSW Planning Policies – will replace State Environmental Planning Policies (SEPPs). These policies will be made by Cabinet and will provide the policy framework under which all other planning instruments will operate.
      NSW Planning Policies will not contain any binding development controls. Policies contained in NSW Planning Policies will be implemented by development controls contained in Local Land Use Plans. Where a Local Land Use plan contains controls that are inconsistent with a NSW Planning Policy, an applicant for development consent will be able to obtain a Strategic Compatibility Certificate from the Director General that overrides the inconsistent provisions.
    • Regional Growth Plans – will provide the principal direction on how the Government expects a particular region to grow over a 20-year period. They will not be statutory instruments but will inform the creation of Subregional Delivery Plans and Local Land Use Plans.
    • Subregional Delivery Plans – will be the primary mechanism by which objectives and priorities outlined in Regional Growth Plans are achieved. They will contain more specific details as to how the targets identified in Regional Growth Plans are to be implemented. They will also identify the infrastructure required to support the plans.
      Subregional Delivery Plans will directly rezone key areas and provide a framework for streamlined, code-based assessment in those areas. If a proposed development complies with the specific development controls contained within a Subregional Delivery Plan, a consent authority will not be able to refuse it. Merits assessment will be restricted to those aspects of the development where no standards have been set.
    • Local Land Use Plans – will replace Local Environmental Plans. In addition to development controls, Local Land Use Plans will contain a detailed strategic plan for the area. A development that is consistent with this strategic plan will be allowed to proceed based on its merits, even if it exceeds the base standards identified in the plan. All development guidelines will be fully integrated within Local Land Use Plans, removing the need for development control plans. Local Land Use Plans will also specify the infrastructure required to support the strategies identified in the plans. The requirements of all government agencies will be considered when a Local Land Use Plan is prepared. This will remove the need for a consent authority to seek concurrence or approval from other government bodies when determining a development application.
  • More flexible zones – Zones contained in planning documents will become less prescriptive and more flexible. A broader range of uses will be permitted in each zone. The Government proposes to introduce three new zones:
    • Enterprise Zones – will contain very little development control. They will contain incentives to attract investment;
    • Future Urban Release Area Zones – will identify areas of future growth; and
    • Suburban Character Zones – will explicitly preclude development that adversely impacts on the local character of the zone.

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What will happen next?

The Government has invited submissions on the Green Paper, which will be on exhibition until 14 September 2012. It plans to release a White Paper containing draft legislation in November 2012, and proposes to enact a new Planning Act to replace the current Environmental Planning and Assessment Act in early 2013.

Once the new planning system is in place, the government will commence the process of formulating the planning documents outlined above. There will be many opportunities to participate in this process.

The White Paper will outline the transitional arrangements for projects commenced under the current planning system.

For further information, please contact:

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