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2 Aug 12
At last, public feedback sought for proposed reforms to NSW planning laws

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By Patrick Holland, Partner and Samantha Daly, Senior Associate

On 14 July 2012, the NSW Minister for Planning, the Hon Brad Hazzard MP placed the long awaited Green Paper for the ‘New Planning System for NSW’ on public exhibition. The NSW Government is now seeking community and industry feedback on the Green Paper.

The Green Paper provides a broad policy outline for reforms to the current planning and development approval system in NSW by proposing comprehensive changes to the State’s planning laws. In effect it is likely that the Environmental Planning and Assessment Act 1979 (EP&A Act) will be repealed and replaced by the Sustainable Planning Act which, according to the Green Paper will promote a far more streamlined and efficient planning and development approval process.

According to the Green Paper the existing EP&A Act focuses heavily on the process rather than outcomes. The Green Paper proposes a significant shift to a more strategic and flexible performance based system that facilitates economic growth and upfront community participation.

The reforms proposed in the Green Paper will be based around five fundamental areas: community participation, strategic focus, streamlined approvals, provision for infrastructure and delivery culture. 

Implications for property developers

Key implications of the proposed reforms for property development in NSW include:

  • permissibility of development will be determined by four levels of strategic plans being, NSW Planning Policies (to replace current State Environmental Planning Policies), Regional Growth Plans, Subregional Delivery Plans and Local Land Use Plans. 152 Local Land Use Plans will replace the current 300+ Local Environmental Plans and thousands of Development Control Plans, and are intended to ensure that local planning is consistent with the agreed direction set at the regional and subregional levels
  • subregional delivery plans will act as the main tool for defining land use choices including ‘locking-down’ rezonings
  • there is a strong regard for community consultation in the Green Paper and the community will be encouraged to participate in the development of relevant planning instruments, with the aim of streamlining developments at the development application stage. Whilst this may result in faster development assessment, there is a risk that anti-development groups could hi-jack the process during the strategic planning phase
  • no concurrence or referrals will be required at the development application stage as agency requirements will be incorporated at the strategic planning stage
  • three new land use zones are proposed to be included in Local Land Use Plans including a ‘suburban character zone’, an ‘enterprise zone’ and a ‘future urban release area’ zone. Enterprise zones will constitute a more flexible zone (with very little development controls) and will be targeted to attract new employment generating development, but could also provide opportunities for mixed use housing
  • any matter or aspect of a project that has been adequately dealt with at another stage of the approval process will not be reassessed
  • it is proposed that each Council publish ‘standard’ development consent conditions on their website to give applicants more certainty as to the types of conditions that are likely to be included in any approval
  • a new process is proposed to be introduced for ‘partially complying development’ so that any aspects of a proposed development that comply with the controls in the Local Land Use Plans will be approved by the accredited certifier as ‘code assessable development’ (similar to the current complying development regime) while any non-complying aspects of the same development will be assessed as merit assessable development (with no requirement for community consultation). Non-compliance with the controls in Local Land Use Plans will not construed as a prohibition to development
  • current provisions in relation to State Significant Development and State Significant Infrastructure will be retained, however two new categories of development have been recommended to be added to the categories of state significant development being ‘Projects of a retail and/or commercial nature of a project value of $75 million and over’ and ‘Residential developments with a planned yield of 500 dwellings or more (including staged development underpinned by concept plans or master planning to such an anticipated yield)’
  • targets will be set for timeframes for different types of assessment and the achievement of these targets will be monitored and reported
  • development applications will continue to be determined by Councils, except those with regional significance which will continue to be determined by Joint Regional Planning Panels. Councils will be encouraged to establish independent expert panels to decide on the development applications currently determined by elected local politicians (councillors)
  • all current review and appeal provisions in the EP&A Act will be retained with some expansion of appeal rights for applicants on rezoning
  • no detail is provided in relation to transitional provisions which will clearly be relevant for modifications of existing planning approvals and also for applications for new approvals that may be made prior to the finalisation of the various levels of strategic plans, and
  • little detail is provided regarding the proposed implementation of the new planning laws and in particular the resourcing of the various government departments and boards that will be required to implement and manage the proposed planning regime.

Strategic Planning

The Green Paper confirms that there is a need to ‘bring together infrastructure and strategic land use planning’ under a single system. This will be done through developing clear infrastructure delivery programs, and including regional towns in the provision of State infrastructure.

NSW Planning Policies will replace the existing State Environmental Planning Policies and Section 117 Directions. These Planning Policies will articulate the NSW Government’s policy direction and position on major planning issues including housing, employment, regional development and infrastructure.

The Green Paper also proposes the introduction of Regional Growth Plans, Subregional Delivery Plans, Local Land Use Plans as well as uniform zoning and land use definitions across the State. Local Land Use Plans will replace the current Local Environmental Plans, with the aim of moving towards a performance based approach.

Development Assessment & Compliance

The Green Paper identifies that the current development assessment process in NSW is ‘too complex, too process-driven, too detailed and too adversarial’. 

The NSW Government’s main objective is to strengthen the PAC and the Joint Regional Planning Panels to equip them to carry out their enhanced roles effectively and transparently, thereby ‘depoliticising’ the development assessment process. This includes strengthening their procedures and codes of practice, how they engage with the community, performance monitoring and how they receive feedback, particularly from stakeholders through user groups.

The Green Paper recommends the phasing out of Voluntary Planning Agreements or that they be significantly modernised and simplified. A new system for infrastructure contributions has also been proposed which will aim to make the system fairer, more affordable and less complex, and have greater accountability on how the contributions are spent. It is proposed to overhaul the current infrastructure levies, however no detail has been provided as to the precise nature of these reforms.

The reforms will place a greater emphasis on ‘e-planning’ by making available online development applications, strategic plans and local zoning, and will incorporate spatial datasets with a ‘Google style’ viewer. There was support for the introduction of a ‘track’ based assessment system which would align the impact of a development with the level of assessment required.

Infrastructure Planning & Coordination

New Growth Infrastructure Plans have been proposed, which will integrate planning and provision of infrastructure with strategic planning.  These plans will be prepared in conjunction with Subregional Delivery Strategies with the aim of aligning infrastructure planning and delivery with proposed future land use decisions.

A 20-year State Infrastructure Strategy will be introduced in September 2012, ‘identifying what infrastructure the state needs to achieve economic growth and how to activate both public and private sector resources to deliver it’.

Community participation

The Green Paper emphasises a need for a much greater focus on public participation, to ensure the planning system ‘places people and their choices at the heart of planning decisions about their future’. 

The Green Paper proposes the establishment of a Public Participation Charter to set standards of community participation depending upon the planning issue under consideration, including benchmark minimal requirements that encourage best practice, transparency and innovation.

Environmental groups, stakeholders and industry will be consulted in the making of State Planning Policies, Regional Growth Plans, Subregional Delivery Plans and Local Land Use Plans. Environmental groups will also be invited to participate in the assessment of all levels of development applications.

Making a Submission

The Green Paper has been released for community and industry feedback for a period of two months.  The closing date for submissions is Friday 14 September 2012.

Once the Government has received and considered the feedback from the community, a White Paper and Exposure Bill will be released, providing much more detail on how the new system will be implemented. The Government encourages feedback on the Green Paper though online forums, written submissions and face-to-face workshops.

Please contact our NSW environment and planning team if you would like assistance in preparing a submission in response to the Green Paper.

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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