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25 Jul 12
Changes to NSW planning laws - miners beware, the devil is in the detail

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By Patrick Holland, Partner and Kate Addinall, Senior Associate

Introduction

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. To download a copy of the Green Paper please click here.

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 In effect it is likely that the Environmental Planning and Assessment Act 1979 (EP&A Act) will be repealed and replaced by the Sustainable Planning Act which, according to the Green Paper will promote a far more streamlined and efficient planning and development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 that users of the planning system are seeking to achieve. The Green Paper proposes a significant shift to a more strategic and flexible performance based system that facilitates economic growth and upfront community participation. Underpinning this is a streamlined ‘4 Step’ planning system with key elements being Local Land Use Plans and Sub Regional Delivery Plans which in our opinion could jeopardise future mining projects by way of sterilising land for mining purposes.

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. 

Overview of implications for mining projects

Key implications of the proposed reforms for resources and energy projects in NSW include:

  • current provisions in relation to State Significant Development and State Significant Infrastructure will be retained
  • any matter or aspect of a project that has been adequately dealt with at another stage of the approval process will not be reassessed
  • strategic planning proposals will guide future development of regional and sectoral areas which will have particular consequences for greenfield mining projects e.g. mining in the Upper Hunter and Gunnedah Basin
  • there is proposed to be increased integration with other state agency approvals e.g. a proposal to integrate the aquifer interference approval under section 90 of the Water Management Act 2000 in the new State significant assessment system
  • targets will be set for timeframes for different types of assessment and the achievement of these targets will be monitored and reported
  • 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. This may potentially result in anti-mining lobby groups hi-jacking the plan making process
  • the Planning Assessment Commission (PAC) will continue to be the approval body for state significant development, however the Green Paper recommends that it formally become a ‘quasi-judicial’ body but it will not replace the Land and Environment Court
  • all current appeal provisions in the EP&A Act will be retained
  • a recommendation that consultants preparing Environmental Impact Statements (EIS) should be chosen from an accredited panel, and required to meet certain standards regarding the impartiality and quality of their work. It is not apparent from the Green Paper whether the accreditation requirements apply to authors of the EIS, or all consultants who contribute to the EIS.

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 mining, 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 and 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. 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.

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 and 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’. 

This reform is based upon the perception that there is currently a significant lack of community confidence in the integrity of the planning system, particularly in relation to decisions about larger projects. The aim is to involve the community earlier in guiding planning decisions that will shape the growth and future of our cities, towns, and neighbourhoods.

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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