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Focus: The way ahead for planning in NSW?

9 December 2011

In brief: Developers, decision-makers and the public, who could be affected by an overhaul of the NSW planning system, have the chance to help shape the new regime, through the release of an issues paper that invites feedback. Partner Paul Lalich (view CV) and Lawyer Andrew McGovern report.

How does it affect you?

  • The comprehensive review of the NSW planning system currently being undertaken has the potential to affect developers, decision-makers and members of the public alike, and the issues paper offers an important opportunity for stakeholders to make submissions on the statutory design and implementation of the new system. The submissions period ends at midnight, 17 February 2012.
  • Issues of particular concern to developers include how community infrastructure should be funded, how state and regionally significant development should be determined, whether and in what circumstances departures from controls in plans should be permitted, and whether proponents can initiate rezoning proposals.
  • Issues of particular concern to councils, and other decision-makers, include whether there should be greater emphasis on strategic planning in a new planning system, whether and to what extent councils and elected councillors should be involved in determining large and complex development, and whether Joint Regional Planning Panels should play an enhanced role.
  • Issues of particular concern to members of the public include how participation opportunities and consultation processes for plan making and development assessment can be improved, whether ecologically sustainable development should be made an overarching objective of a new planning Act and whether objector appeal rights should be expanded.

Background

In July 2011, Planning and Infrastructure Minister Brad Hazzard announced that the State Government had appointed Tim Moore ( former Minister for the Environment and current Senior Commissioner of the NSW Land and Environment Court) and Ron Dyer (former Minister for Public Works) as joint chairs of the Planning System Review Panel. The Panel is an independent body charged with undertaking a full review of the existing planning system and developing a new planning system in consultation with stakeholders and the community.

Under its term of reference, the Panel completed a two-month listening and consultation phase, conducting 91 community forums across 44 locations in NSW and holding approximately 70 stakeholder meetings. More than 330 written submissions were received from the public and interested parties during the initial consultation phase, which ended on 4 November 2011.

On 6 December 2011, the Panel released the issues paper The way ahead for planning in NSW?.1 It outlines the matters raised during this extensive program of public consultation on the state of the planning system in NSW and its legislative centrepiece, the Environmental Planning and Assessment Act 1979 (the EP&A Act).

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The issues paper

The issues paper reflects the matters raised during the initial consultation phase, the most prominent of which are set out in Chapter A and are summarised below. Importantly, it does not lay out the details of a new, simplified planning system. Rather, it invites further public feedback in the form of questions on the shape that the new planning system should take.

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Underlying goals of the new planning system

The issues paper reports that the EP&A Act (now more than 32 years old) received extensive criticism for its lack of relevance; its overly legalistic language; its overly complicated processes for plan making and development assessment, in particular; and its failure to ensure openness and transparency of decision-making. Stakeholders, the issues paper notes, overwhelmingly require that a new planning regime be simple, accountable and transparent, be written in plain English and eliminate unnecessary delay in planning processes, but there was less consensus on how to achieve these ends.

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Objectives of Planning Act

The issues paper notes that there was little to no concern raised about the EP&A Act's present objectives. A key issue raised, however, was whether some objectives should have greater weight than others. Some stakeholders suggested ecologically sustainable development should be the primary objective. A further proposal, which attracted strong support, was to supplement existing objectives with operational objectives (eg clarity, simplicity, transparency, due process, certainty and timeliness). The issues paper invites stakeholders to comment on these proposals' merits.

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Flexibility and the planning system

There was ongoing tension between proponents of greater flexibility in planning controls and proponents of strict adherence to rigid controls. The issues paper notes that the desire for flexibility was greater in inland rural and regional areas, where planning policies focus on promoting growth, than in coastal and metropolitan areas, where there is an emphasis on controlling development. Stakeholder submissions are invited on, among other matters, whether there should be strict controls in plans, whether applications that depart from development controls should be permitted and what the test should be for proposed variations.

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Strategic planning

Strong support was received for implementing a strategic planning process that incorporates community participation. Further to this, the issues paper raises questions about the status or weight to be given to strategic plans, the manner in which strategic plans might be implemented and ways to achieve more certainty in achieving the targets in strategies. A related question is how new planning legislation can accommodate regional strategic land use planning currently being undertaken to reconcile agricultural and mining interests.

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Community involvement

The issues paper records community frustration about the perceived deficit of community involvement in the existing planning system. Concerns ranged from the inadequacy in notification protocols, to the difficulty in accessing and providing a response to environmental impact statements. The issues paper invites stakeholders to comment on how a new planning system could improve community participation opportunities and consultation processes for plan making and development assessment.

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Provision of infrastructure and community facilities

There was widespread concern about how community facilities should be planned for and funded. Councils and local community members raised concerns about the lag between the approval of higher-density development and the provision of major public infrastructure. Industry stakeholders questioned whether levies imposed on developers to fund facilities were too onerous. The issues paper invites feedback on how levies to pay for local and state community infrastructure should be set, and whether there are alternatives to, or additional funding sources for, such infrastructure.

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Development decision-making

Contradictory views were expressed during the consultation period on how decisions should be made about individual development proposals and who should make them. While there was widespread agreement that decisions about large, complex and economically significant development should be made at a state level, there was disagreement about whether such decisions should be made by the Minister or by an independent body such as a Planning Assessment Commission. There was, similarly, a lack of consensus on the criteria for regionally significant development and the role that Joint Regional Planning Panels currently play in determining such development. The issues paper invites further stakeholder comment on these issues.

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Other matters

The issues paper notes that the other matters most commonly raised were:

  • community concerns about the scope of, and processes for, complying development;
  • the role of private certifiers in the construction process and their perceived lack of accountability;
  • whether there should be a right of review of, or appeal against, council decisions concerning the zoning of a property; and
  • the integrity of environmental impact statements.

Members of the public are invited to comment on specific questions arising from these issues.

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Next steps

The submissions period ends on midnight, 17 February 2012. A working group in collaboration with the Panel will consider public responses to the issues paper and produce a Green Paper. The Green Paper, which will set out a preferred structure for a new planning system, will be published by the end of April 2012. A White Paper and draft legislation will then be released for public comment before a Bill is submitted to the NSW Parliament. Details of timing for the White Paper have not yet been released.

If you require further information, or assistance with a submission, please contact any of the people below.

Footnotes
  1. Available at www.planningreview.nsw.gov.au.

For further information, please contact:

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