Australia: Neverending Story - The Latest In NSW Planning Reforms

Last Updated: 1 September 2008
Article by Nick Thomas

Most Read Contributor in Australia, November 2017

Key Points

  • The first (minor) provisions of the recent NSW planning reforms have begun, but it may take 12 months for the full package of reforms to commence.
  • There's a NSW Parliamentary Inquiry into the NSW planning framework underway, and a new Ministerial subgroup looking at harmonising aspects of planning laws across Australia.

It's barely two months since the major reforms to the NSW planning system were passed by Parliament, but Parliament is already starting to look at further planning reform – this time via an Upper House inquiry.

In addition, at a meeting of State and Federal local government and planning ministers last week, a Ministerial subgroup was given the green light to develop proposals covering a national approach to expanding complying development, performance monitoring and e-planning.

As we reported in REM Insights, the Environmental Planning and Assessment Amendment Act 2008, when it commences, will make major changes to the planning system in NSW. The first provisions of the reform package commenced on 1 August, but it's not yet clear when the major reform provisions will commence.

In this article we comment on the implementation phase of the planning reforms, and also look at what the new Inquiry hopes to achieve.

Rolling out the planning reform package

As many readers will know, NSW Parliament passed the Amendment Act in the early hours of 18 June, and we are now waiting for the Amendment Act to commence.

Highlights of the Amendment Act reforms include:

  • planning instruments – the plan-making process will be simplified, and there will be time frames for making local environmental plans;
  • development assessment and approval – there will be some streamlining, and some new approval authorities, and some additional requirements for carrying out approved developments;
  • development contributions – there will be some new ground rules, and some tighter controls for imposing contributions;
  • certification of development and compliance – there will be a renewed focus on consistency between the development as approved and the development as constructed, and on compliance with approvals.

Many of the reforms depend on regulations, State policies and codes, and most of these are yet to be prepared, so it's no surprise that the reforms are likely to commence in stages. But when?

The first few provisions of the Amendment Act commenced on 1 August 2008, but they will have limited significance for most stakeholders. The commencing provisions included (among other things) provisions which increase penalties for commencing work without a construction certificate and appointing a certifying authority, allow the imposition of additional controls (via planning instruments) on powers for private certifiers to issue subdivision certificates, clarify when building or subdivision actions may be brought, allow the making of additional regulations dealing with certification of development, and deal with other matters (mostly procedural) concerning the certification of development.

The Department of Planning Circular which announced those commencements said that the other reforms in the Amendment Act will commence "in stages over the next 12 months". This seems a long roll-out time, and we might expect the Implementation Committee (which is being established as part of the reform package) to drive commencement dates more vigorously than the Departmental Circular suggests.

Removing State agency concurrences

One of the draft documents released in late July is the draft State environmental planning policy (SEPP) to repeal many State agency "concurrences", which is an important aspect of the reform package.

State agency concurrences effectively give nominated State agencies veto powers for a development application (DA) or draft local environmental plan (LEP). A Government review reported that many of these concurrences caused unnecessary duplication and inefficiency in the DA and LEP-making process. The draft SEPP proposes the removal of over 1,300 State agency "concurrences" from the planning regime, replacing many of them with a list of factors for the relevant consent authority to consider instead.

If the new SEPP is to work effectively, it will be important for consent authorities to limit their consultation with State agencies in the DA or LEP making process. The Government is preparing guidelines to deal with issues on which the Stage agencies would otherwise advise, to reduce the need for consultation. However, the merits of some DAs or draft LEPs may still warrant consultation, and the challenge for consent authorities will be to determine when consultation is appropriate and to limit the time taken with any consultation.

The period for comments on the draft SEPP closes on 22 August.

The Parliamentary Inquiry – benchmarking national and international planning?

The Bill for the Amendment Act drew extensive comment and debate, both within and outside Parliament. Among the comments was a call for a systematic review of the NSW planning regime. Many commentators believe there have been too many piecemeal changes to NSW planning laws, and the legislation is no longer providing efficient and environmentally sound planning and development control.

As a result, the Minister for Planning has asked a Parliamentary Standing Committee to conduct an inquiry into the NSW planning regime, in light of national and international trends in planning.

The Minister identified a "national mood for reform" in planning laws when introducing the Bill for the Amendment Act into Parliament, and we can see this in what other States and Territories have done recently or are now proposing to do with their planning laws.

According to its terms of reference, the Committee will look at (among other things):

  • the implications of the Council of Australian Governments' reform agenda for planning in NSW,
  • duplication of processes under the Commonwealth and NSW environment and planning legislation,
  • climate change and natural resources issues in planning and development controls,
  • appropriateness of considering competition policy issues in land use planning and development approval processes in NSW, and
  • implications of the planning system on housing affordability.

The Committee is taking submissions from August 2008, but don't hold your breath – it's not due to report until December 2009.

The interaction of planning and competition laws, however, may be examined earlier than the Committee proposes – the ACCC has already flagged this as an issue in its report on grocery prices, and the NSW Government is working on a policy to deal with planning rules for retail development.

One step closer to national planning laws

The decision of the Local Government and Planning Ministers' Council to develop proposals for a national approach to aspects of planning laws again highlights the mood for national reform which we discussed earlier.

The NSW Planning Minister, Frank Sartor, will chair a Ministerial Subgroup to develop proposals for nationally consistent laws and practices in relation to complying development, performance monitoring and e-planning.

It is intended that members of the Subgroup will also include representatives from Queensland, Victoria and South Australia, and the Australian Local Government Association will also be invited to participate.

The Subgroup has been asked to prepare a program for submission to the Council of Australian Governments for final approval.

While the areas nominated for review cover only some of the aspects of planning laws needing reform, and focus on primarily smaller-scale development, the decision to look at harmonisation in any area is a welcome step forward. The next challenge is to ensure that the model for consistent laws is an efficient and productive one.

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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