Chapter 5 of the White Paper outlines the proposed shift in focus to "evidence based" strategic planning in the preparation of plans, community and stakeholder engagement and decision making.
SEPPs, LEPs and DCPs will be replaced with the following hierarchy of plans:
NSW planning policies
These policies will present the State's broad planning objectives, priorities and policy directions. It is proposed that the objectives of existing state environment planning policies (SEPPs) will be included in NSW Planning Policies, while the actual development control provisions contained in existing SEPPs will sit within the relevant Local Plan. It is anticipated that the Planning Policies will be prepared in time for the commencement of the new planning legislation.
Regional growth plans
These plans are proposed to be grounded in "detailed supporting evidence" and will set out a high level vision for each region of the State, including establishing planning policies and objectives relating to housing, employment, the environment and infrastructure. Legislation will require Regional Growth Plans to be consistent with the NSW Planning Policies. While these plans will be recognised under the new Act, they will not directly zone land or contain regulations on development. They are expected to generally follow a common format and approach, which is consistent with the draft Metropolitan Strategy for Sydney to 2031. Regional Growth Plans will be progressively rolled out across the State following the introduction of the new planning framework.
Subregional delivery plans
In appropriate locations these plans will provide the delivery framework for Regional Growth Plans. In particular, these plans will identify key precincts and sites of interest for direct rezoning to achieve the policies and vision set out in the Regional Growth Plans. These plans will be prepared by new Subregional Planning Boards, which is a new planning body that will be established in the Act. These boards will be supported by the Department of Planning & Infrastructure and comprise a council and state representative, as well as an independent chair. Preparation of these plans will commence following the release of Regional Growth Plans, and is required to be completed within two years of the new legislation commencing. Regional Growth and Subregional Delivery Plans are required to be reviewed every four years and amended if required.
Local Plans will provide the principal legal document that delivers the strategic vision for a local government area. Councils will be required to prepare a Local Plan for their local government area with "early and effective community participation". Local Plans will be required to follow a standard format comprising four mandatory parts, namely Strategy (Part 1), Planning Controls (Part 2), Development Guides (Part 3) and Contributions (Part 4).
The "Planning Control" component of the Local Plan will allow for fewer, broader zones, and will include mandatory provisions applying to development, including existing provisions currently in SEPPs. A planning proposal will be required to amend Part 2 of the Local Plan and will be considered through the existing gateway determination process. The Minister will have the power to amend a Local Plan.
The "Development Guide" component of the Local Plan will address the physical form of development and, where possible, be visual用resented through maps, diagrams and illustrations. Numerical height and FSR development standards will no longer be used, with site density managed through 3D building envelopes.
Local Plans will include provision for "Contributions", specifying the amount of local and regional infrastructure contribution payable for particular types of development. Local infrastructure contributions can only be imposed if a Local Infrastructure Plan is in place. Regional infrastructure contributions will be identified in a Growth Infrastructure Plan.
The new Act will contain provisions to transition existing Standard Instrument LEPs and DCPs into relevant parts of the Local Plan. Local Plans will cover a timeframe of 10 years with reviews required every four years.
There will be a legislative requirement that each plan gives effect to the agreed outcomes in other plans further up the hierarchy, while all plans will be required to follow a standard format.
Chapter 6 of the White Paper outlines a proposed new system of development assessment that is described as a shift to a "performance based system" where decisions are "faster and transparent but with no less rigour". Under the new development assessment system, a development application may be streamed into one the following five tracks:
There will be an expanded range of exempt development types will be introduced. These include minor structures around the home (such as BBQs and front fences), some fit outs and changes of use (for example change of retail use to another retail use), as well as some temporary structures and uses.
An expanded range of complying development types will also be introduced. These include most new dwelling houses (up to two storeys), alterations and additions to dwelling houses on land zoned residential, some additions to existing industrial and commercial buildings and some new industrial buildings on land already zoned industrial. Increased flexibility will be introduced with the application of complying development standards. For example, where development would be complying but for a minor variation with the requisite standard, Councils will have the ability to approve variations (by issuing a "variation certificate") referred to them by certifiers that do not have adverse impacts on neighbours. Appeal rights will be available against the failure to issue a "variation certificate". A Construction Certificate will not be required for complying development.
A NSW Planning Policy will require certain types of development to be identified as "code assessable" in the Local Plan. Where a development meets the applicable solutions and performance criteria identified in the code, the development cannot be refused and community consultation will not be required. If an alternative solution is proposed by an applicant, and Council is satisfied that the solution still meets the performance criteria set in the code, the Council also cannot refuse the application or that aspect of the development. If neighbours are consulted on those aspects of development that do not comply with acceptable solutions, council can only consider any comments received on those aspects of the development. The draft legislation also prohibits a consent authority from refusing an application for code assessable development unless it has first notified the applicant that it intends to refuse the application, as well as notifying the applicant of any changes considered necessary before the application will be reconsidered. Any submissions lodged by the applicant in response to the proposed refusal must then be considered by the consent authority.
Development that is not streamed into any of the other tracks will be subject to a full merit assessment. Merit assessment will also be required for any aspect of a code assessable development which does not meet the requisite performance criteria. Examples of the types of development that will be assessed in this track include designated development, most state significant development, as well as proposals for a new pub or residential building without a lower floor commercial component in a town centre. Consent authorities will be required to adopt an "amber light" approach so as to encourage a proponent to modify a development so that its impacts are acceptable. Where an amber light approach is not adopted, the Council will be required to justify that decision. Community consultation will occur as part of the merit assessment process. Where a development departs from the strategy for an area, a higher level of community participation will be required.
Land uses that are not consistent with strategic vision for an area will be prohibited by the relevant Local Plan. In certain circumstances, the Director-General will have the power to issue a "strategic compatibility certificate", which will have the effect of making prohibited development permissible with consent.
Strict timeframes for determination are proposed in the White Paper. For instance, a right of appeal to the Land and Environment Court will be triggered where a code assessment application (that complies with all acceptable solutions) has not been determined within 25 days.
Council's ability to "stop the clock" is limited with no ability to do this where a code assessment development application complies with acceptable solutions. For all other applications, Councils may only stop the clock once within the first 21 days and only for a period of 21 days. The assessment clock resumes when the applicant has provided the information sought or the 21 days elapses.
The ability to modify a development consent will be retained, however, a consent authority will not be permitted to refuse a modification application which meets the standards identified in a Local Plan's development guide. Where the development does not meet those standards, or if the original development was merit assessed, the consent may still be modified provided it is "substantially the same" development.
Compliance and enforcement
Chapter 6 of the White Paper proposes a range of enforcement measures, including:
- the issuing of administrative orders for restoration and prevention of harm, payments of costs, expenses or compensation, orders for the payment of monetary benefits acquired by virtue of an offence and publication orders, and
- a tiered system of offences and maximum penalties similar to those found in the Protection of the Environment Operations Act 1997, including maximum penalties for Tier 1 offences of up to $5 million (up from $1.1 million) for offences committed by corporations and a maximum penalty of $1 million for offences committed by individuals (down from $1.1 million). For example, the draft legislation provides that the carrying out of a development without a planning approval, or contrary to the requirements of a planning approval, can constitute a Tier 1 offence where the offence is committed intentionally and the requisite degree of harm or injury is present.
The White Paper retains and enhances enforcement provisions currently found in the Environmental Planning & Assessment Act 1979 including:
- the continuation of the open standing provisions allowing "any person" to approach the Court for orders where there has been a breach or threatened breach of the legislation (although the draft legislation does propose to exclude certain matters from third party challenge)
- the consolidation, updating and rationalisation of the different types of compliance powers that apply to different planning authorities, including the power to issue orders (described as "development control orders" in the draft legislation) powers of entry, power to require records and information, and the power to conduct audits
- special provisions relating to brothels and the power to suspend or revoke corruptly obtained development consents, and
- orders authorising the cessation of utility services will be extended to further development types (such as boarding houses or backpackers hostels) and will be available where a person has failed to comply with a stop work order and there is a demonstrated or potentially significant impact on public amenity, health or safety.
Chapter 7 of the White Paper deals with infrastructure provision and proceeds on the basis that the system of collecting section 94 contributions does not provide a sustainable or fair way to meet the challenge of providing infrastructure to support a growing population. The current system is described as too complicated, unpredictable lacking in transparency too expensive and unfair.
The key changes relating to contributions include:
- Growth Infrastructure Plans (prepared primarily by the NSW Government) will be introduced as the key mechanism for the integration of land use planning and infrastructure provision
- two infrastructure categories will be established: local (previously known as section 94 contributions) and regional infrastructure contributions
- regional infrastructure contributions will apply across Sydney and all other areas which experience high growth. Priorities for regional contributions will be outlined in Growth Infrastructure Plans
- local infrastructure contributions will be used to fund "essential infrastructure attributable to development" (such as local roads, local open space and embellishment, basic community facilities and the capital costs of drainage) contained in Local Plans, which are prepared by Councils. These contributions will be uncapped and are proposed to be applied based on a "unit charge" (for example, floor area of the development)
- land required for open space and drainage will be funded through a new Regional Growth Fund rather than via contributions. All forms of new development within a region will be required to make a "modest" contribution to the fund. Like regional infrastructure contributions, Regional Growth Fund charges will apply in Sydney and other high growth areas
- a three year limit will be imposed on the holding of local contributions revenue by Councils
- contributions will be able to be paid nearer to the "point of sale" to support the financial feasibility of developments
- more stringent annual reporting of contributions by Councils will be required
- benchmarking of infrastructure costs with the ability to seek approval to seek contributions for costs beyond the benchmark
- the use of planning agreements and power to condition a consent to require off site works will be curtailed and only used in exceptional circumstances, and
- contributions for biodiversity offsets and affordable housing will be separated from infrastructure contributions.
Building regulation and certification
Chapter 8 of the White Paper describes the proposed changes to building regulation and certification. The changes are being made to rebuild confidence in the quality and safety of buildings and to provide better directions and support to the NSW Building sector.
Some of the more significant proposals include:
- building design plans for complex building types will be required to be prepared and certified by appropriately qualified persons
- development consents will be refocused on "planning matters" so as to allow the consent authority to give proper consideration of a development application against matters in the strategic plan, with specific building requirements addressed at the construction certificate stage. For example, conditions regarding standard construction matters (such as hours of construction and site sedimentation controls) will not be addressed in the development consent but rather in the construction certificate
- the separation between the roles of a principal certifying authority and a certifying authority will be removed so that building work is certified by one building certifier
- the Fire Safety Schedule will be replaced by a "compliance schedule" that is issued with the complying development or construction certificate, and a "building manual" issued with the Occupation Certificate
- building certifiers will be required to call on the expertise of relevant professionals to certify that construction plans are not inconsistent with the development consent. Such certification will also be required to determine whether or not a modification to the development consent is required
- critical stage inspections will be improved by mandating inspections that relate to the risks and complexity of a building's design and construction and
- the introduction of requirements to allow the issue of an occupation certificate where a critical stage inspection has been missed. This will include requiring the building certifier to provide documentary evidence that the relevant work is satisfactorily completed.
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.