Australia: The way ahead for planning in NSW: Release of the 'Issues Paper' on the NSW Planning System Review

On 6 December 2011, the NSW Government released the 'Issues Paper for the NSW Planning System Review' (Issues Paper) for public comment. The Issues Paper marks the latest step in the Planning System Review (Review) process, following extensive consultation conducted across the State in October and November 2011. The consultation process sought "the broadest possible range of views on the strengths and weaknesses of the present system", and submissions were received from a range of interested parties encompassing developers, local councils, professional industry bodies, members of Parliament and interested individuals.

As the title 'The way ahead for planning in NSW' implies, the Issues Paper will be used as a basis to develop the framework for the reformed planning legislation that the Minister for Planning and Infrastructure, the Hon Brad Hazzard MP, has indicated will be completed late in 2012.

The Issues Paper summarises the issues raised in the consultation process, and translates those into 238 questions posed for the purposes of obtaining further feedback from the public and stakeholders. That feedback on the Issues Paper will provide the basis for a 'Green Paper' setting out a recommended preferred structure for a new planning system in NSW to be published in April 2012. A 'White Paper' and draft legislation is expected to be released for further comment before the draft legislation is introduced into the NSW House of Representatives in September 2012.

Some of the common themes detailed in the Issues Paper include the need to simplify planning processes, eliminate unnecessary delay in planning processes, and improve the openness in decision-making. The need for reform of the objectives of the legislation was frequently raised, including a "consistently raised" suggestion that ecologically sustainable development should be the primary objective of new legislation. Other current issues such as climate change and biodiversity are canvassed in the Issues Paper, as well as the desire for greater community participation and consultation at all stages of the planning process.

This update considers some of the key themes addressed in the Issues Paper.

Background to the Planning System Review

The NSW Government commissioned the Review as part of a broader process of redrafting the Environmental Planning and Assessment Act (EP&A Act). There are three stages to the Review:

  • The 'listening and scoping' phase which involves identifying the central principles for a new planning system through the consultation and submissions process;
  • Issuing a 'Green Paper' in April 2012 which will outline options for a future planning system in NSW and set the basis for a legislative scheme influenced by the 'listening and scoping' phase; and
  • Issuing a 'White Paper' that will lay out the NSW Government's new framework for the reformed planning system and the release of subsequent draft legislation in September 2012.

The Issues Paper is the result of an extensive consultation process chaired by former NSW Environment Minister Tim Moore and former NSW Public Works Minister Ron Dyer (the Panel) involving 91 community forums across NSW, 70 stakeholder meetings and meetings with Members of Parliament. A total of 330 written submissions have been received from the public and other interested parties.

Central themes of the Issues Paper

Objectives of the new planning legislation

According to the Issues Paper, a significant issue that arose during the consultation process was the relevance of the existing objectives of the EP&A Act, with many submissions strongly supporting the inclusion of new and contemporaneous objectives based on current needs and priorities of communities in New South Wales. Suggested objectives include preserving biodiversity, the consideration of climate change and ensuring that the demands of housing needs in urban areas are met.

The Issues Paper states that an overarching objective of the new planning legislation based on ecologically sustainable development was consistently suggested, with all decisions, functions and powers of decision-making bodies to be exercised within sustainable boundaries. Further, as the scope of 'modern-day objectives' is quite extensive, the Issues Paper raises the question whether the remaining objectives should be ranked by importance.

Structure of the new planning legislation

The Issues Paper indicates there is concern over the complexity of the structure of the EP&A Act, with one suggestion being that its various components be divided into separate statutes. For example, the part of the EP&A Act dealing with development assessments could comprise its own separate statute. Submissions to the Review also indicated support for greater integration of information technology within the planning system in order to increase accessibility to data on NSW land, the electronic lodgement of development applications and the publication of documents in planning processes and development assessments.

Development Proposals

According to the Issues Paper, the most frequently raised topic at every community forum during the consultation process was development proposals and the regulation of carrying out development.

In relation to development assessment, the most frequent theme from stakeholders and community was the desire for a quicker, simpler and therefore cheaper process. In this regard, the Issues Paper poses some interesting questions, such as:

  • Whether it should be possible to apply for approval for development that is prohibited in a zone;
  • Whether deemed approvals should take the place of deemed refusals for development applications;
  • Whether Councils should be able to charge a higher development application fee in return for fast-tracking assessment of a development proposal;
  • Whether the economic viability of a development proposal should be taken into account in deciding whether the proposal should be approved, or in the conditions for approval;
  • Whether public interest conditions ought to be allowed, which go beyond conditions which immediately relate to a particular development; and
  •  Whether consent authorities should be able to review certain conditions of consent at regular intervals, or grant time-limited consents (for example in the case of developments which are potentially subject to inundation by sea level rise caused by climate change).

The Issues Paper also notes suggestions for the incorporation of an 'amber light' approach in the new planning legislation. Under this approach, Councils may approve development on the condition that proponents implement changes to proposals as requested by Councils. In such cases, the Issues Paper asks whether it should be mandatory for Councils to advise of this during the assessment process.


Many comments were made in submissions about the process for zoning and rezoning land, distilled in the Issues Paper to a broad question about whether or not an individual dissatisfied with a council decision involving rezoning should have a right to challenge the Council's decision. Related questions address who should decide any such review or appeal, and whether there should be any distinction between a council decision to change zoning and a council refusing an application to change zoning.

Community and State Infrastructure Contributions

The Issues Paper also records a "real and significant tension" in the present planning system about the level, purpose and scope of financial contributions levied to fund community and State infrastructure. Councils are concerned that the capped amounts are too low, but on the other hand the development industry considers that the present situation of capped contributions represents "an undesirable and upward impact on the costs of development" which impacts housing affordability.

Whilst the Issues Paper does not seek to address the appropriate levels of contributions (or indeed whether they should be levied at all), the Issues Paper does pose questions about process, in particular whether the Independent Pricing and Regulatory Tribunal should be given a reference to examine how any shortfall in development contribution plans for necessary community infrastructure should be funded, or should have other roles in the contributions process, such as considering variations to contribution caps.

Accountability (complying developments, private certifiers and environmental impact statements)

Concern about the complying development process was reportedly another major theme raised during the consultation. Individuals and community groups expressed desire for an increase in community participation on the basis that many relevant issues are being ignored. Concerns were also expressed in some submissions about a perceived lack of independence when development application assessment documents are funded by applicants, and also concerns about the calibre of certifiers. One possible response posed in the Issues Paper is the establishment of an accreditation system for consultants, or having reports peer reviewed by externally nominated reviewers.

Plan making (process and content)

Strong opinions were reportedly expressed in submissions in relation to plans that set out broad land use planning strategies and plans that prescribe very specific development standards and controls for an area. Specifically, there was a call in some submissions for greater transparency in terms of both the process and content of plan making.

According to the Issues Paper, feedback during the consultation period suggested the establishment of two independent bodies; namely, a State Planning Commission (to conduct strategic land use planning) or a Planning Advisory Board (to provide the Minister for Planning and Infrastructure with strategic advice on planning issues), or both. These suggestions were made to support the objective, raised at many community forums, to "take politics out of the plan making process at the strategic level". The question is also posed whether the 'public interest' should be considered in the plan making process.

The Issues Paper also poses questions about what should be included in the content of local environmental plans (LEPs), state environmental planning policies (SEPPs), strategic plans and development control plans (DCPs). The issue of transparency is also discussed in this context, with many submissions seeking increased access to statistical information used by NSW State and local governments.

In relation to strategic plans, community involvement in the planning stage was identified in some submissions and concern was raised about ensuring full implementation of these plans. Consequently, the Issues Paper poses the questions whether strategic plans should be statutory instruments with greater legal weight.

State Environmental Planning Policies

A controversial issue raised during the consultation process was the purpose and role of SEPPs in the planning system. Many submissions argued that SEPPs should be abolished due to their ability to override local planning provisions. On the other hand, support for the continuation of SEPPs was advocated by some on the grounds that SEPPs provide certain social benefits and encourage consistent State-wide policies relating to environmental protection and economic activity.

A possible solution posed in the questions formulated in the Issues Paper is whether SEPPs should be removed from the NSW planning system, with relevant provisions to be included in a Schedule to LEPs. In this sense, the provisions of SEPPs would therefore be consistent with the provisions of LEPs, and could be updated and amended easily.  

Next steps

Submissions in response the questions posed in the Issues Paper may be lodged until 17 February 2012. If you require assistance in preparing a submission or would like further information on any of the issues discussed in the Issues Paper, please contact a member of our Sydney Environment and Planning team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Felicity Rourke
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