Australia: A new planning system for NSW - White Paper and draft Exposure Bills released

On 16 April 2013, the NSW Government released its much anticipated White Paper for a new planning system in NSW, together with draft legislation comprising an Exposure Draft Planning Bill 2013 and Planning Administrative Bill 2013.

The framework for the new planning system is based on "five transformative change areas" namely, changing the planning culture, providing for greater community participation at an earlier stage, increasing the focus on strategic planning, introducing a streamlined development assessment process and ensuring the provision of infrastructure. This focus is reflected in the objects of the draft Planning Act, which include the promotion of "economic growth", "opportunities for early and on-going community participation" and "efficient and timely development assessment proportionate to the likely impact of the proposed development". Interestingly, the promotion of "ecologically sustainable development" is not retained as an object in the new Planning Act.

Public consultation on the White Paper and draft legislation is currently underway, with submissions due by 28 June 2013. A report on community and stakeholder feedback on the White Paper will then be released.

Key changes proposed by the White Paper

The White Paper and supporting draft legislation comprises over 300 pages. Some of the key changes proposed by the White Paper include:

Community participation

An increased focus on community participation at a strategic planning level is proposed. There will be a statutory requirement for planning authorities to comply with a "Community Participation Charter" and develop their own "Community Participation Plans". Community Participation Plans will be required to include certain mandatory requirements and other forms of discretionary community participation.

ePlanning portal

An online portal to be known as "ePlanning" will be introduced to replace a paper-based development application assessment and consultation processes. The ePlanning website is proposed to be a one stop shop that provides a range of services, including 3D visualisations of major development proposals, online lodgement of development applications and payment of fees, as well as the development of an electronic planning certificate and register of development consents.

New strategic planning framework

A new strategic planning framework is proposed to replace the existing regime of state environment planning policies (SEPPs), local environmental plans (LEPs) and development control plans (DCPs). The subregional delivery plans will be prepared by a new level of government, namely Subregional Planning Boards. For more information on this new planning framework, click here.

New planning assessment process

The current development assessment process will be replaced with a "track based assessment" approach to planning. It is envisaged that 80% of all developments will be either complying or code assessable within the next five years. While community consultation will be increased at the strategic planning stage, significantly less opportunity for community participation is apparent at the DA stage. The ability for Council to refuse to grant consent to code assessable development will also be restricted. For more information on the new approach to development assessment, click here.

Reducing unnecessary requirements

The White Paper aims to minimise the application of "unnecessary" concurrences, consultation requirements and approvals under other legislation. In particular:

  • requirements for approvals and authorisations under other Acts for "public priority infrastructure", state infrastructure development or state significant development either do not apply or are required to be issued consistent with the planning approval for the development, and
  • development applications that require concurrence, referrals and approvals will generally be subject to a "one stop referral". For these applications, the Director-General will undertake the functions of the concurrence or referral agency or issue general terms of approval to the consent authority.

Land & Environment Court appeals

The types of Land & Environment Court appeals streamed into the mandatory conciliation are proposed to be increased. A "very fast appeal track" is also proposed to consider appeals on single residential dwellings and dual occupancies. Legislation will allow simple and straightforward appeals over minor matters to be determined "on the papers" by a Commissioner at the request of the parties.

Regional and state significant development

While the existing classes of regional and state significant development will be retained, the number of Joint Regional Planning Panels (JRPPs) will be increased and changes made to the number and makeup of the Panels. JRPPs will have the ability to delegate their functions to a Council's General Manager to ensure that non-controversial developments with few public submissions can be determined quickly by Council's professional staff. The Minister will remain the consent authority for state significant development and have the power to delegate the determination of private proposals to the Planning Assessment Commission and, for less complex or non–controversial developments, to senior officers of the Department of Planning and Infrastructure.

Simplified planning process for priority infrastructure projects

A simplified planning process for "priority infrastructure projects" is proposed. For planning purposes, the declaration of development as "public priority infrastructure" will authorise the carrying out of a project without the need for further planning approval. A "project definition report" is required to be completed and publicly exhibited for such development before it is carried out, with the focus being on environmental management measures to minimise any adverse impacts of the project.

Restrictions to third party challenges

While the open-standing provisions found in the Environmental Planning & Assessment Act 1979 are retained, the draft legislation proposes to exclude certain matters from third party challenge. For example, the draft legislation provides that judicial review proceedings cannot be instituted in respect of the declaration of public priority infrastructure or a breach of a "project definition report". Limitations are also proposed on third party challenges to strategic plans, state significant development, state infrastructure development and the "non-mandatory" provisions of the draft legislation concerning community participation.

Compliance and enforcement provisions

Stronger compliance and enforcement provisions are proposed in the new Planning Act, including maximum penalties for "Tier 1" Offences of $5 million. For further information on these proposed changes, click here.

New infrastructure contribution framework

The current section 94 contribution and state infrastructure contribution regime will be replaced with "local" and "regional" infrastructure contributions. The White Paper also proposes limiting the use of voluntary planning agreements. Click here for further information on the new infrastructure contribution framework.

Limiting appeals against contribution conditions

The ability to appeal to the Land & Environment Court against conditions imposing contributions will be limited in certain circumstances. For example, the draft legislation provides that the Court may not disallow or amend a local infrastructure contribution which is imposed as an "indirect" contribution or a regional infrastructure contribution imposed in accordance with a Local Plan.

Significant changes to building regulations and certification

In response to long standing concerns with the current system, a vast range of changes are proposed to building regulation and certification in NSW. Click here for more information.

Transitional arrangements

In terms of transitional arrangements, the White Paper provides that planning and assessment processes that began before the new legislation commences will be dealt with under existing statutory procedures and planning instruments. Given the time needed to prepare the strategic plans which make up the new planning framework, it will therefore be some time before the new planning system in NSW takes effect in practical terms.

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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