Australia: Strategic planning for NSW: the Greater Sydney Commission and a new Part 3B

Key Points:

The Greater Sydney Commission Bill 2015 does more than establish the Greater Sydney Commission; a new Part 3B in the Environmental Planning and Assessment Act would introduce strategic planning into NSW's planning law.

The Greater Sydney Commission Bill 2015 passed the lower house of Parliament on 28 October 2015, signalling a commitment to strategic, interdisciplinary and collaborative planning, which has been on the agenda since the planning law review process of 2011-2013.

The Bill tabled in Parliament confirms the intended structure and functions of the Greater Sydney Commission (GSC). It also seeks to amend the Environmental Planning and Assessment Act 1979, to insert a new Part 3B, entitled "Strategic Planning" which will provide for the making of regional and district plans.

In this article we explain the new Part 3B as well as what we can expect from the GSC.

Strategic planning inserted into the Planning Act

Included in the Bill, is an amendment to the Planning Act which has broader implications for strategic planning for NSW. It provides for the creation of two levels of strategic plans: regional plans and district plans. The first of the regional plans is "A Plan for Growing Sydney", however, each region of NSW will eventually develop its own regional and district plans.

Part 3B will create a hierarchy of plans, where these regional and district plans will guide the development of local environmental plans (LEPs). Part 3B will require LEPs be prepared "to give effect to" regional and district plans; on the making of a district plan, each relevant council must review its LEP, prepare a planning proposal necessary to give effect to the district plan, and report to the GSC on its review and proposed amendments to its LEP.

Consistent with the Government's objective to engage in community consultation at the strategic level, the new Part 3B provides for community consultation at the regional and district plan-making stage, but not at the stage of amending LEPs following council review against the strategic plans.

While the creation of the GSC removes certain powers from the Minister, particularly in relation to the making of LEPs, the Minister is given power to make these strategic plans and power to do so without following the conditions precedent such as having regard to applicable State environmental planning policies and any infrastructure policies, to allow for matters of State, regional or district significance. The only mandatory requirement is the public exhibition of the draft plan for 45 days.

Strategic plans can be reviewed within three months following publication.

The Minister also retains power to issue section 117 directions in relation to environmental planning instruments.

Expectations of the GSC

Following a whole of government approach, the GSC will be charged with co-ordinating the different levels of government involved in infrastructure and land use decisions, guided by the principles of ecological sustainable development.

Considering the six objectives the Bill sets for the GSC together with the intentions for the GSC articulated in its second reading speech delivered to the lower house by the Minister for Planning, Mr Rob Stokes, we can expect the GSC will:

1.  Lead metropolitan planning for the Greater Sydney Region

The GSC, led by the Strategic Planning Committee, will prepare six district plans for the districts of Sydney with reference to the regional plan, "A Plan for Greater Sydney". These will then inform a review of LEPs by councils.

Part 3B indicates that we can also expect that this process of regional and district plan-making and subsequent amendment to existing LEPs to follow in other NSW regions.

The GSC will take on the development approval functions of the Joint Regional Planning Panels under the Planning Act.

2.  Encourage development that is resilient and takes into account natural hazards

The GSC will assist Sydney councils to develop resilience plans to address the risks posed by climate change. Many Sydney councils have already begun this process.

3. Promote orderly development in the Greater Sydney Region having regard to the economic, social and environmental principles of ecologically sustainable development

The GSC will draw on the diverse expertise of its four Greater Sydney Commissioners and six District Commissioners as well as its four committees (the Sydney Planning Panel, Finance and Governance Committee, Infrastructure Delivery Committee and the Strategic Planning Committee), to deliver balanced advice to Government that considers the principles of ecologically sustainable development.

4.  Promote the alignment of infrastructure decision-making with land use planning

The GSC will assist integration of Government decision-making on infrastructure and land use planning through its ex-officio members from the Department of Planning and Environment, Transport and Treasury.

The GSC will also bridge the gap between Local and State Government, through council nominated representatives on the Sydney Planning Panel and its six District Commissioners.

5.  Promote the supply of housing, including affordable housing

The Government has committed to providing 50,000 new homes each year. The GSC is to promote this goal through its strategic planning leadership.

6.  Support ongoing improvement in productivity, liveability and environmental quality.

The Finance and Governance Committee will provide leadership on city-shaping issues and develop metrics on reporting the economic, environmental and social performance of Greater Sydney. It will also administer an awards scheme for planning excellence.

The GSC will host a dashboard for the community to engage with its activities and data, submit an annual report.

Bipartisan support of the GSC a positive step

The bipartisan support of the GSC as Sydney's newest planning body represents a positive step towards the strategic planning of Sydney's future and the new Part 3B of the Planning Act extends this vision to NSW more broadly. The success of these reforms is likely to rest on the GSC's independence from Government and whether Part 3B's strategic plans are the subject of meaningful community consultation.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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