On Friday May 6, 2016 the NSW Planning Minister, the Hon Rob Stokes MP, announced reforms to the planning system. In many respects this will involve dusting off the 2013 reforms which were ultimately withdrawn by the O'Farrell government when the Hon Brad Hazzard MP was the Minister for Planning. This update looks more closely at what is likely to be covered in the 2016 reform package.
Minister Stokes has set out an ambitious timetable for consultation on the reforms, to culminate in draft legislation to be released in the second half of this year. He says that the amendments will focus on ensuring confidence and consistency within the planning system.
At a briefing to stakeholders on May 5, 2016, the Minister and senior staff from the Department of Planning and Environment outlined the major elements of these reforms:
- the proposed reforms will be achieved through amending the existing Environmental Planning & Assessment Act 1979 (EP&A Act). The amendments will be 'evolutionary not revolutionary' and there will not be a standalone new Act;
- Many of the 2013 proposed reforms received broad support and these will be adopted where they have not been implemented. Examples include: administrative changes to streamline the way in which Panels operate; clearly stating the hierarchy of State, regional and local plans; clarifying and streamlining environmental assessment provisions; and consolidating review and appeal provisions into a single new part of the EP&A Act;
- The principle of ecologically sustainable development will remain as a driving principle for the legislation;
- Ending the transitional arrangements for projects approved under Part 3A of the EP&A Act; and
- There will be changes to Part 5 of the EP&A Act, with less focus on the identity of the applicant and more focus on the nature of the development.
The State Opposition, while acknowledging that the current EP&A Act requires updating, says it needs to see the detail of the proposed reforms before it can comment.
Changes to community consultation, concurrences and integration
Arguably one of the most controversial aspects of the reforms, which the Minister has foreshadowed, is a change to the process of consultation prior to DA lodgement. The Minister commented that the process of community consultation and involvement has been reactive and ad hoc in the past, and it needs to be 'fair, transparent and robust'.
The Minister says that pre-DA consultation or meetings with councils and with neighbours will minimise unnecessary conflict and "make sure that the community has a chance to shape plans before applicants have spent huge amounts of money". The suggestion of mandating consultation between proponents and neighbours, prior to the lodgement of any application, will be a significant change to the current position. It has the potential to undermine the certainty provided by having clear planning controls and to erode investor confidence.
On a more positive note, improvements are proposed to the system of obtaining concurrence or referral comments from multiple NSW government agencies. This has been an area of criticism for some time, with many proponents saying that the existing process leads to duplication and delay.
The reform process will examine how to reduce duplication in the processes of the Planning Assessment Commission (PAC), particularly in the current two-stage process where the PAC reviews a development and subsequently determines the (same) application under delegation from the Minister.
Similarly, there is to be a review of the integration of development consents and other environmental licences for State significant projects, particularly those that have retained the benefit of the Part 3A transitional provisions.
Reform is also being considered in relation to infrastructure contributions. The Department is "considering the mechanisms that will best ensure that the costs of key growth infrastructure for State and local government are appropriately linked to new development, and how this infrastructure can be efficiently funded and delivered in a way that enables and promotes sustainable growth".
What won't be included
Not all of the areas covered by the earlier reforms are back on the agenda. This announcement clarifies that the following topics will not be included in the 2016 reforms:
- Introducing a code assessment track for development;
- Land use zones under the Standard Instrument will not be changed; and
- State Environmental Planning Policies (SEPPs) will remain.
What are the next steps?
The Department of Planning will commence round table consultation meetings in metropolitan and regional NSW immediately, with meetings starting this week and proposed to be held during May. No additional information is expected to be released ahead of these round table meetings, as they are viewed as an opportunity to seek ideas from stakeholders.
Exposure draft legislation will be developed following these consultation meetings, and the government intends to introduce and debate the amending legislation during the spring session of Parliament in 2016.
We will be following the reform process closely.