Australia: Complete Review of the NSW Planning System - First Report Released

The NSW Government last week released an issues paper for public comment, as part of its 18 month review of the state's planning system, which is likely to culminate in a new planning act for NSW. This document is the first tangible output from the review process, following a lengthy state-wide program of meetings undertaken by the review chairpersons, Tim Moore and Ron Dyer.

Readers will recall that the State Government was elected in March 2011 on the back of a firm commitment to return more power to local councils in the short term (see our September 2011 update here on how this has already occurred) and to completely replace NSW's 32 year old Environmental Planning and Assessment Act in the medium term. The 119 page issues paper released this week is the first real milestone in that process. It is titled The way head for planning in NSW? and, as the question mark suggests, the document is largely open-ended. Is poses 238 questions, each accompanied by a brief commentary. In short, the paper leaves the review chairpersons and the NSW Government the flexibility to go in any number of directions once they receive further feedback from the community.

Nonetheless, debate on some issues is closed off. The paper says the review will propose no changes to the system of state infrastructure contributions as these "must remain the exclusive economic policy preserve of the government". Abandoning the existing system of private certifiers is off the table. Significant budget increases to support any reforms are not likely. While the Central Sydney Planning Committee may be re-designated as a joint regional planning panel (JRPP), the Lord Mayor will remain as its chairperson.

Other issues are presented in a way that suggests some options will not be considered at all. For example, when discussing the powers of JRPPs, the paper simply divides the debate into two camps:

• those who want the existing joint regional planning panel criteria "reviewed" with a view to returning even more powers to councils; and
• those who want to give councils discretion to earmark additional types of development to be decided by a panel (to take the political heat out of decisions).

The perspective of those who think more decision-making should be transferred from councillors to JRPPs is not mentioned.

However, the paper does pose many questions relevant to the reforms sought by developers. Issues raised for discussion include:

• appeal rights for proponents whose rezoning is refused by council or not dealt with;
• compensation rights for property owners impacted by down-zoning (i.e. unfavourable rezonings);
• an automatic approval for development that complies with development standards, with merit assessment for those developments that fall outside of the standards;
• complete abolition of prohibitions, so that all development may be approved if merit can be demonstrated - without the need for a rezoning;
• a definition concept of "public interest" (being a vague concept that consent authorities currently must consider when assessing any DA) which may reduce the ability of consent authorities to refuse permissible development for reasons that have nothing to do with the applicable planning controls;
• allowing the economic viability of development to be taken into account when deciding conditions of approval; and
• requiring consent authorities to notify applicants of the changes that they need to make to a development application to secure approval;.

However, it is not all good news. In fact, many questions in the paper have clearly been posed as a response to those who favour more prescriptive processes and regulation. Examples include suggestions that:

• there be increased rights for third parties (objectors) to appeal against decisions to approve development;
• development applicants lose the right to choose who will prepare environmental impact statements on their behalf, and instead the government will appoint or accredit experts;
• there be new additional legislative requirements for "community participation" prior to the preparation of a draft plan;
• greater legal weight be given to development control plans;
• state significant development be subject to development controls plans;
• a new hurdle be created for some development types – proposals will need to demonstrate that they will "improve or maintain" the position that exists prior to development being carried out;
• the adverse impact that new development may have on local property values may be considered as part of the development assessment;
• there be greater consideration of impacts that are remote from a development site, but directly affect a community (for example, increased train movements impacting on distant communities);
• councils with "robust" decision-making may be exempted from JRPPs entirely;
• a wider range of development consent conditions be made "reviewable", that is, subject to change by council well after a consent has been granted;
• "public interest conditions" may be imposed on development proposals dealing with issues that do not immediately relate to a particular development (for example, community compensation funds);
• developers lose the right to select their private certifiers;
• the discretion of private certifiers to issue a construction certificate if plans are not an exact match with the development consent be removed;
• there be a public process for evaluating proposed complying development;
• developers lose their existing right to challenge s.94 contributions on the grounds that they are unreasonable in the particular circumstances of a case, when the relevant contributions plan has previously been approved by the Independent Pricing and Regulatory Tribunal;
• the different objectives of the Act be ranked, or given pre-determined weightings relative to each other – this may mean, for example, that environmental objectives could be ranked ahead of social and economic objectives; and
• that there be separate objectives for plan making and development assessment determination.

Ultimately, only some, or none, of the above proposals may be part of the recommendations of the planning review. It is too early to tell, and we will not know until a "green paper" is published by the end of April 2012.

In the meantime, we simply need to observe that the issues paper does not necessarily signal a better planning system for applicants. Depending on the path that Mr Moore and Mr Dyer choose to follow, there is potential for the planning system to get much better, or, much worse.

The deadline for submissions is Friday 17 February 2012. If you would like assistance making a submission, please contact us.

Gadens will continue to monitor and report on significant developments relevant to the planning system review.

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This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.