Nine months after the release of a Green Paper which heralded once-in-a-generation reforms to the NSW planning system, the State government has released the next stage of its planning reforms package. On 16 April 2013, Minister Hazzard released a White Paper and two exposure bills, promising a new planning system which is simpler, more certain and more transparent than the present one, and which "places people and their choices at the heart of planning decisions". This legal update examines the key aspects of the reform package.
On 16 April 2013, the State government released the "A New Planning System for NSW - White Paper" (White Paper) together with exposure draft legislation in the form of the draft Planning Bill and the draft Planning Administration Bill (together the White Paper Reforms). The White Paper Reforms are the third step in this government's journey to review the planning system, promising to promote economic growth and productivity; greater community input into the planning process; better decision making; and less delay and red tape.
In July 2011, the government commenced a review of the planning system through the establishment of an Independent Panel led by the Hon Tim Moore and the Hon Ron Dyer, culminating in the publication of a report which contained 374 recommendations for consideration by the government (Review Report). Then, in July 2012, the government released the Green Paper entitled "A New Planning System for NSW" (Green Paper) which set out the major proposed areas of reform.
Our legal updates which analysed the Green Paper proposals can be found here, NSW Planning System Green Paper - July 2012 can be found here and a detailed analysis; The NSW Planning System Green Paper - July 2012 can be found here.
The White Paper which has just been released sets out the details of how the new system will be delivered. It promises transformative change in five fundamental areas of reform, which we examine in this legal update:
- Delivery culture
- Community participation
- Strategic planning
- Development assessment
- Provision of infrastructure
In addition, the White Paper proposes changes to building regulation and certification, which are designed to increase confidence in the quality and safety of buildings and to provide better direction and support to the NSW building sector.
At the heart of the White Paper Reforms is a desire to change planning culture in NSW and to move towards a "can do" culture. The new planning culture will "promote cooperation and participation, the delivery of positive and pragmatic outcomes, and a commitment to ongoing education and innovation."
The White Paper recognises that bringing about cultural change will require investment of significant time and resources, as well as training and professional development, and that the Department of Planning and Infrastructure (Department) will need to lead the creation of a better culture for planning in NSW. A Deputy Director General of Cultural Change will be appointed as a "change agent" within the Department and among planners in other sectors.
The White Paper acknowledges that the new system will require a shift in skills and resources to strategic planning, with less focus on "statutory planning in isolation, repetitive processes and bureaucratic procedures". A key element of this delivery culture will be mandatory performance reporting for strategic planning at all levels.
The key elements of community participation set out in the White Paper Reforms are:
- planning authorities will be required to act consistently with the Community Participation Charter, enshrined in legislation, when undertaking strategic planning and development assessment;
- most planning authorities must prepare a Community Participation Plan, which provides for how they will undertake community participation in the plan making and the development assessment process. Seven principles of the Community Participation Charter (set out in legislation) will feed into the development of the Community Participation Guidelines prepared by the Department, to assist in the preparation of Community Participation Plans;
- there is an emphasis on early community participation in the development of Regional Growth Plans and Subregional Plans, with the intention of there being "less need for the community to be involved in development assessment that is consistent with the plans that have already been prepared with community participation"; and
- the development of a more comprehensive online (ePlanning Portal) system to provide access to a number of services, including a planning viewer service, application lodgement and tracking service, and discussion threads and news.
Some key details have yet to be released. For example, Community Participation Guidelines that "will give guidance on the appropriate level of participation" are yet to be prepared by the Department. Further, Regulations that will "ensure that the additional community participation is proportionate to impacts" when considering development that departs from the vision and outcomes of the strategic plan, are yet to be released.
The White Paper Reforms provide certainty around some mandatory requirements, specifically those regarding:
- Minimum public exhibition periods for strategic and other plans;
- Minimum public exhibition periods for development applications and other matters; and
- General provisions relating to other aspects of public exhibition.
The White Paper delivers on the proposal in the Green Paper to shift to "upfront planning" through the development of strategic plans. The focus on strategic planning follows the approach enshrined in other legislation such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the State government's existing Strategic Land Use Policy, which is underpinned through Strategic Regional Land Use Plans.
The new planning framework will comprise NSW Planning Policies, Regional Growth Plans, Subregional Delivery Plans and Local Plans. These will replace existing State and local based environmental planning instruments, although it is proposed that some environmental planning instruments will continue under relevant provisions of a Local Plan.
This framework seeks to deliver outcome driven sustainable development based on long term objectives and overarching policy. The proposals for strategic planning in the White Paper Reforms are consistent with the Green Paper, however there is now further detail on the content of each strategic plan and greater clarity on how each of the strategic plans will interact. In summary, the White Paper outlines:
- ten strategic planning principles, which are contained within the legislation and guide the strategic planning framework. These principles relate both to outcomes and processes that can facilitate achieving those outcomes;
- the hierarchy of the four strategic plans and related policies. This includes details about the standard approach to be followed by each plan, the scale at which each plan is targeted (that is, its geographical reach) and the relevant planning authority that will prepare each strategic plan. Notably, the hierarchy of plans will also address other key state policies including NSW 2012; A plan to Make NSW Number One, Regional Action Plans and Catchment Action Plans. If implemented, this will provide a clear link between NSW planning legislation and the State Government's overall strategic policies;
- the content and nature of NSW Planning Policies, Regional Growth Plans, Subregional Delivery Plans and Local Plans in considerable detail; and
- how referrals, concurrences and other planning related approvals will be dealt with within the new strategic planning framework.
The Strategic Planning Framework – how will it deliver a new system?
The White Paper proposes that 72 existing State Environmental Planning Policies will be replaced with up to 12 NSW Planning Policies, containing principles and policies on matters of State strategic planning including infrastructure, development assessment, environment, housing, jobs and agriculture.
Sitting under the layer of NSW Planning Policies will be
Regional Growth Plans and Subregional Delivery Plans. Regional
Growth Plans will focus on integrated infrastructure and land use
decisions, whilst Subregional Delivery Plans will identify
precincts and locations of significance to the State and the
subregion, presumably similar to the approach being taken in
Strategic Regional Land Use Plans. Subregional Delivery Plans will
be developed through state and local government representatives on
Subregional Planning Boards.
Local Plans will provide the legal mechanism to deliver the NSW Planning Policies, Regional Growth Plans and Subregional Delivery plans, and Councils will need to certify that a Local Plan has been prepared in accordance with statutory requirements.
Local Plans and zones
Overall, Local Plans will contain "fewer, broader and more open" zones. In this respect, the White Paper distances the government from the position presently embodied in the Standard Instrument, where there are multiple zones for a particular use resulting in a "long list of zones and a desire from local government to introduce additional zones". Whilst Local Plans will provide for the standardisation of planning controls through standard land use definitions and standard zones to be applied State wide, the existing zones within Standard Instrument will be replaced with 13 "indicative zones" in the Local Plans.
The Green Paper proposed three new types of zones, two of which have been retained in the White Paper:
- the proposed Enterprise Zone will be incorporated into the indicative zones. This zone, which is to attract investment and stimulate growth as reiterated within the White Paper, will be supported by development guides characterised by limited controls, provided they do not result in any significant adverse environmental impacts.
- similarly, the proposed Suburban Character Areas are retained and will be an element of the new indicative Residential Zone.
- the proposed Future Urban Release Area Zone which was flagged in the Green Paper has not been included. Instead, the White Paper indicates that this "concept" has been adapted as a tool to identify future urban areas in Regional and Subregional Plans, as well as in the strategy section of Local Plans.
Two other important elements of the strategic planning framework are the provision of development guides and contributions within Local Plans:
development guides will provide more detailed standards for development permitted within a zone, creating a hybrid system between traditional zoning and development codes. These guides will effectively identify the assessment path for different types of code assessed, exempt and complying development.
developer contributions currently provided for under the existing legislation will be carried over into the new system through Local Plans, which will specify the amount of local and regional infrastructure contribution payable for particular kinds of development in that area.
Referrals, concurrences and other approvals
The White Paper proposes to undertake a whole-of-government review of the existing system of referrals, concurrences and other planning related approvals within four months, being mid-August 2013. The intention is to reduce the complexity and remove unnecessary aspects of these requirements. This will result in a 'one stop shop' of additional requirements to be controlled by the Department of Planning and Infrastructure.
Approvals to be managed through this new system include environment protection licences under the Protection of the Environment Operations Act 1997 (POEO Act), water licences and approvals under the Water Management Act 2000 and mining and petroleum authorities under the Mining Act 1992 and the Petroleum (Onshore) Act 1991.
Other features of the strategic planning framework
Additional key features of the Strategic planning framework set out within the White Paper Reforms include:
- a proposal to replace the current paper-based map system with approved spatial maps, providing greater clarity on the application of relevant controls based on current and up to date information.
- a requirement for regular and periodic review and the potential for a 'staged repeal' program, similar to the Government's existing staged repeal of statutory regulations, to be provided through regulations; and
- details on how Local Plans will interact with Part 5 of the Planning Bill, which contains provisions for development that does not require consent. It is important to note that the planning control provisions of a Local Plan will not apply to development to which Part 5 applies, unless expressly stated. Land use and development controls which are currently in State Environmental Planning Policy (Infrastructure) 2007 will be located within Local Plans and Councils will not be able to amend or override them.
Development Assessment Tracks, Appeals and Enforcement
The White Paper and White Paper Reforms contain further detail on how the development assessment tracks fit within the strategic planning documents, such as the Local Plan and incorporated development guides.
Assessment tracks specified in Local Plans
The White Paper proposes "that 80 per cent of all developments will be complying or code assessment within the next five years, with reduced timeframes and documentation". The types of development to be included in the assessment tracks identified in the Local Plan are:
- Exempt development – which will be self-assessed and will continue in a similar manner to the present system.
- Complying development – which will be assessed by an accredited certifier or the relevant Council.
In addition, there will be an ability for an applicant for a proposed development which contains a minor non-compliance with development guide provisions of the Local Plan to apply to the relevant Council for a "variation certificate" to certify that the non-compliance is a permissible variation. The proposed development can then be approved by an accredited certifier or the relevant Council as complying development.
- Code assessment – which will be assessed by Council against performance based criteria as well as "acceptable solutions" for non-compliances with the development guides.
- Merit assessment – which will be subject to a full assessment carried out by Council.
A single development may be the subject of both code assessment and merit assessment.
Development guides, incorporated in Local Plans, which specify the types of development to be included in each assessment track will be developed by Councils. However, the Department will develop model development guides to be included in Local Plans, and Councils that do not develop their own development guides or fail to reach a certain target approval share for code and complying assessment will have the model development assessment guides applied to them.
The White Paper Reforms identify the following further categories of development:
- EIS assessed development – which is analogous to the existing provisions regarding "designated development";
- State significant and regional development – the existing classes of state and regional development will remain; and
- Part 5 environmental impact assessment, state infrastructure development and public priority infrastructure.
Existing and continuing uses
The White Paper maintains the current approach for existing and continuing uses.
Amber light approach
A consent authority will now have a positive obligation to advise an applicant of what amendments could be made to a proposal which would allow it to satisfy a merit assessment prior to refusing that application.
Strategic compatibility certificates
A proposed development which is consistent with a regional growth plan or subregional delivery plan but is prohibited by the provisions of a Local Plan which has not yet been amended to reflect the provisions of the higher order plan, can apply to the Director-General for a strategic compatibility certificate to authorise that development. However, in response to submissions received on the Green Paper, these certificates will be restricted so that they will only be an interim approach.
The model of decision making is largely the same as in the present system. However, the decision to retain the role of elected councillors in the development assessment process is a policy shift from the position of the Green Paper, which stated that all development assessment decision making would be removed from elected councillors. Decision makers under the new system will be as follows:
- the Minister will maintain a decision making role, however, the White Paper indicates that the decision making role will continue to be delegated to the Planning Assessment Commission (PAC).
- Joint Regional Planning Panels will be renamed Regional Planning Panels and will continue to be the decision maker for regional development. The present classes of regional development will be retained. The number of panels will be increased, however, the panel members will be reduced from 5 to 3 members.
- Councils will maintain the decision making role for development assessment, although the White Paper encourages Councils to delegate development assessment decision making to independent hearing and assessment panels or professional staff.
- the current role of private certifiers to approve complying development will be retained.
Strict timeframes for assessments will apply, with limited opportunities to "stop the clock" for further information or consultation/concurrence requirements. Consent authorities will also be limited in the information that can be required for applications, especially for code assessments, although the requirements for information to be lodged with an application will also be more prescriptive.
A consent authority will be able to modify a development consent, if it is satisfied that the development as modified will be 'substantially the same', and the modified development is development for which the consent authority can grant consent. The same restrictions as in the rest of Part 4 (including the requirement to grant consent to particular code assessable developments, and in respect of conditions), will apply to consent authorities. The White Paper also notes that modifications can be made to correct a minor error or misdescription, (consistent with s96(1)), but this does not appear to be in the exposure draft legislation.
Appeals and reviews
Most of the current features of the planning system have been retained in respect of appeals and reviews, including those introduced in recent years, with a few additions and changes. Some key features to note are:
- applicants will be able to seek reviews of decisions made by consent authorities (including Councils, regional planning panels and the PAC), in similar circumstances to the current system. However, reviews will not be available for all development tracks. Reviews of rezoning decisions, introduced in November 2012, will also remain.
- the decision of a consent authority under Part 4, in relation to an application for development consent (or a modification) can be the subject of an appeal to the Land and Environment Court within six months of the decision, as is presently the case. This also includes an ability to appeal decisions by a consent authority regarding something that had to be carried out to the consent authority's satisfaction, as well as compliance with a deferred commencement condition. Objectors will have appeal rights for EIS assessed development (consistent with current appeal rights for designated development).
- there is no right of appeal in respect of a decision of a consent authority following a public hearing by the PAC, the determination of (or failure to determine) a complying development certificate, or a decision of a Council to issue, or not to issue, a variation certificate for complying development.
- a new, "very fast track" appeal system is proposed, for appeals on single residential dwellings and dual occupancies. This track is designed so that such appeals are determined with a minimum of expert and legal involvement. The Court's existing mandatory conciliation-arbitration system (or "fast track") is proposed to have expanded application to other types of development.
- in the past, when Panel decisions were the subject of an appeal, the Council had conduct of the appeal. Now, Councils will still conduct the appeal, but will be subject to the control and direction of the panel in conducting the appeal.
- if an applicant files an amended application in an appeal, the Court will be required to make an order for costs thrown away – consistently with the current 'section 97B' costs orders.
Enforcement and orders
The Green Paper provided little detail regarding appeals and enforcement, and therefore, many of the details are new – especially the new penalties for offences, and the new offence of aiding and abetting the commission of an offence.
Similarly to the current position, development control orders will be a feature of the new planning system. Broadly, there are three categories of orders that may be issued by enforcement authorities: general orders, fire safety orders, and brothel closure orders. The functioning of this system is largely unchanged from the present orders system, including a right of appeal.
As under the current system, any person will be able to commence proceedings in order to remedy or restrain a breach of the Act.
However, the Act excludes certain matters from legal proceedings, including in relation to the declaration of public priority infrastructure and provides that certain provisions are not mandatory and accordingly cannot be the subject of proceedings such as for some of the requirements for plan-making. Additionally, appeals in respect of public priority infrastructure will be very limited.
A new criminal offences and proceedings regime will be introduced, with a three tier classification system for offences similar to that which exists under the POEO Act. The maximum fine for corporations has been increased to $5 million for the top tier of offences, which includes carrying out development without the required planning approval. The Court will also be able to make an expanded range of orders in criminal proceedings.
A new offence of aiding or abetting the commission of an offence has been included in the proposed legislation, which could expand the scope of prosecutions, including for unlawful works.
Provision of Infrastructure
The Planning Bill provides that a consent authority will be able to impose by way of conditions on development consents the following contribution types:
- local infrastructure contributions - to fund the provision of local infrastructure;
- regional infrastructure contributions – imposed on specified development or a class of development, as a contribution towards the provision of regional infrastructure by the State; and
- biodiversity offset contributions – as a contribution towards the conservation or enhancement of the natural environment.
"Regional open space levies" which were proposed in the Green Paper as an additional type of contribution levy are not included in the Planning Bill.
Each of the contribution types will be imposed as conditions of consent and, if applicable to a development, regional infrastructure contributions and biodiversity offset contributions will be imposed in addition to local infrastructure contributions. Should a consent authority fail to impose the necessary condition requiring contributions, such a condition will have effect as if it had been imposed by the consent authority.
While the Green Paper proposed that the payment of contributions would occur as late as practically achievable in the development process, the Planning Bill provides that the time for payment of local and regional infrastructure contributions will be as required by the Local Plans.
However, a drafting note states that provision is to be included to enable deferral of the payment of local infrastructure contributions up to the transfer of the land to which they relate and to ensure that contributions are paid before the land can be transferred (whether by statutory charge on the land or otherwise). A similar notation is made for regional infrastructure contributions. It is unclear whether these notations indicate that an additional provision is to be inserted into the Planning Bill, or whether Local Plans will include such a provision.
Growth Infrastructure Plans
Growth Infrastructure Plans may be made by the Minister to identify:
- regional infrastructure for which a regional infrastructure contribution may be imposed;
- priority infrastructure for the region; and
- other infrastructure for the subregion.
The plan must include a "contestability assessment", being an assessment of the opportunities for infrastructure identified in the plan to be provided and operated by the private sector.
The White Paper states that growth infrastructure plans will include subregional performance outcomes, ten and five year spatial infrastructure requirements for growth areas, an approved priorities growth infrastructure delivery schedule with funding allocation for projects within the first five year period, proposed private sector participation, an infrastructure contributions schedule and accountability arrangements and performance monitoring requirements.
While the Green Paper recommended that planning agreements needed to be phased out or significantly modified and simplified, the Bill provides for their continuation. The Bill proposes minimal amendments except notably that the contribution provided must be applied more specifically towards:
- the provision of infrastructure that is identified in a local infrastructure plan or growth infrastructure plan;
- the provision of infrastructure that is identified in a Ministerial planning order; or
- the provision of affordable housing identified in a strategic plan; or
- the conservation or enhancement of the natural environment of the State.
These points more specifically link to the provision of infrastructure that has been identified as being required in a plan rather than more generally, as is the current situation, for a "public purpose".
Public Priority Infrastructure
A declaration by the Minister that development is public priority infrastructure will authorise the carrying out of that development without requiring any further planning approval.
The proponent however must first prepare and submit a project definition report to the Director-General which describes the development, the measures that will avoid, minimise or mitigate any adverse impacts of the development on the environment, any monitoring, auditing and reporting the proponent will undertake on the environmental impacts of the development and any other matters prescribed by the regulations.
Revisions may be required to the report and the report will be exhibited. Following exhibition the proponent is to revise the report to address any further matters notified to the proponent by the Director-General and the report will be published on the NSW planning website.
Building regulation and certification
The proposed changes aim to provide a "more robust, consistent and transparent building regulation and certification system which will increase confidence in the quality and safety of buildings. Key elements include:
- clarifying minimum acceptable standards and requirements for regulation and certification of buildings, systems and subdivisions;
- requiring additional qualified professionals to certify building elements and systems;
- improving mandatory certification for critical stage inspections;
- improving life cycle performance of important building measures and features, from construction (design, approve, build) to use, including a new requirement for a building manual; and
- strengthening controls through stronger disciplinary guidelines, increased auditing and increased obligations to report non-compliance.
The Green Paper did not contain many proposals for change in building regulation and certification. However consultation was being carried out around the same time by the Building Professionals Board on a Better Buildings Model and the Department was developing responses to the recommendations of the Fire Protection Systems Working Party. Key findings from these are reflected in the White Paper.
These changes will be important to restore confidence in the certification system in particular in circumstances where it is proposed that there will be an increase in the use of certification for development.
The White Paper Reforms are ambitious and far reaching, and will take considerable time to implement. The government concedes that some elements of the reforms will not be in place upon the commencement of the new legislation. For example, the White Paper states that the target for completion of Subregional Delivery Plans is within two years after the commencement of the new legislation.
Given the enormous task associated with implementing the new legislation and developing the four layers of plans recognised in the new strategic planning framework, it is clear that many elements of the current planning system will continue to operate for several years at least. In this context, the transitional provisions which will govern that period are of critical importance, however no detail is provided in the White Paper Reforms about transitional arrangements.
The White Paper Reforms are on public exhibition until 28 June 2013. Please contact Felicity Rourke or Jacinta Studdert if you would like assistance in preparing a submission or understanding the impact of these proposed reforms on your business. Our further, in depth analysis of the White Paper Reforms will follow in the coming weeks.
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.