Today the NSW Government introduced the Greater Sydney Commission Bill 2015 into parliament.  It makes two important changes to the state’s planning system.  Firstly, it establishes the Greater Sydney Commission.  Secondly, it amends the state’s planning law to explicitly provide for regional and district strategic plans.

The Greater Sydney Commission has been a long-time coming.  It was first announced in June 2014.  Its role was broadly outlined in the government’s Sydney-wide metropolitan plan (A plan for growing Sydney) in December 2014.  However, the first detail on the composition and powers of the Commission was only released in September this year.  The introduction of actual legislation into parliament now means there is a great deal of clarity about the government’s plans.

Overview

The Greater Sydney Commission is a real break from many of the ‘reforms’ that we have seen over the past 20 years.  Rather than fiddling with procedures, the creation of the Commission focuses on the core problems with Sydney’s land use planning.  That is:

  • The reluctance of local councils to make decisions that benefit Sydney when there is a chance that the decision may be controversial with local ratepayers.
  • The reluctance of the NSW Department of Planning and Environment to get involved — in a consistent methodical way — with potentially controversial urban planning matters within Sydney.
  • The disconnect between infrastructure investment decisions by the state government and land use planning decisions.  

In truth, many of the long-standing criticisms of the way planning rules are created and applied are merely symptoms of these core problems.

The government seems to recognise this.  It is now moving to improve the health of the overall planning system by ensuring that there is an authority with a clear mandate to work:

  • beyond the confines of individual local councils and state agencies; and
  • in the interests of the broader Sydney community.  

The creation of the Greater Sydney Commission does not involve any re-allocation of legal power from local councils to the Commission.  Instead it involves a transfer and consolidation of various state powers.  The Planning Minister, Rob Stokes, says that the Commission is ‘about using existing powers more efficiently and more transparently’ and that the body is a ‘partnership’ between state and local government.

‘Greater Sydney’ includes the Hawkesbury, Blue Mountains and Wollondilly local government areas, but does not include Wingecarribee, Wollongong, Gosford or Wyong.

What will the Commission do?

In September the government announced that the Commission will:

  • finalise district plans for each of Sydney’s six districts;
  • require local councils to give effect to A plan for growing Sydney and district plans;
  • conduct regular reviews of local councils’ local environmental plans; and
  • monitor and report on the implementation of A plan for growing Sydney.  

It also said that the Commission will be the ‘sole decision-maker’ on ‘many’ significant development assessments across Sydney.  This is because the existing Sydney East and Sydney West joint regional planning panels will be abolished and replaced by a new Sydney Planning Panel associated with the Commission.  This panel will be responsible for granting development consents (outside the City of Sydney) for:

  • proposals with a capital investment value of more than $20 million; and
  • proposals in the $10-$20 million range that have been delayed by more than 120 days.   

The Commission will assume state government responsibilities as the decision-maker on:

  • rezoning proposals;
  • gateway determinations;
  • pre-gateway reviews; and
  • the appointment of a ‘relevant planning authority’ (ie deciding whether a local council or someone else should prepare a rezoning proposal).  

Who makes decisions in the Commission?

The key decision-makers within the Commission will vary, depending on the type of decision.

Some key ‘big picture’ decisions will be made by the members of the Commission themselves.  The ‘members’ of the Commission are:

  • the four ‘Greater Sydney commissioners’, being the Chief Commissioner, an environmental commissioner, a social commissioner and an economic commissioner;
  • the six district commissioners, who will each be appointed to represent one of Sydney’s six districts; and
  • three ex-officio members, being the departmental heads for planning, transport and treasury.

When decisions are made by the ‘members’ of the Commission, they may be decided by majority vote.

While the Planning Minister will have the legal responsibility to appoint district commissioners, the legislation requires the Minister to seek the advice of local councils in relation to a proposed appointment. The Department of Planning and Environment has established district commissioner selection panels that include nominees from each local council.  It is likely that the Minister will end up appointing the district commissioners based on the advice of these selection panels.

The ‘members’ of the Commission are ultimately responsible for the Commission’s decisions in relation to the strategic plans (ie the district plans and future Sydney-wide regional plans). 

It seems that matters currently dealt with by the joint regional planning panels (eg development consents and pre-gateway reviews of proposed spot rezonings) will be dealt with by the ‘Sydney Planning Panel’.  The panel’s composition will be similar to the existing joint regional planning panels.  It will be chaired by the relevant district commissioner who will be joined by:

  • two experts nominated by the Planning Minister; and
  • two nominees of the relevant local council.   

Statutory strategic plans

The legislation will also insert a new ‘Part 3B’ into the Environmental Planning and Assessment Act 1979.  This new part is titled ‘strategic planning’. 

The legislation explicitly allows for ‘regional plans’ and ‘district plans’ to be made as statutory strategic plans.

The regional plans are similar in concept to the ‘regional growth plans’ promised under the (discontinued) 2013 planning reforms.  The legislation re-designates A plan for growing Sydney as a statutory strategic plan.  The Greater Sydney Commission is required to review this plan before the end of 2017.

Any new regional plan for Sydney will be prepared by the Greater Sydney Commission and submitted to the Minister for Planning (who may make changes).  Regional plans for other areas will be prepared by the Department of Planning and Environment (although, in some circumstances, other bodies might be allowed to do this).

In Sydney, district plans are to be prepared and finalised by the Greater Sydney Commission.  The Commission is required to ensure that the public exhibition of the district plans commences within 12 months after each district is formally declared. The district plans are similar to the intended ‘subregional’ plans under past (aborted) planning reforms.

The regional plans and the district plans are strategic plans.  This distinguishes them from the existing regime of ‘environmental planning instruments’ — that is, ‘local environmental plans’ (LEPs) and ‘state environmental planning policies’ (SEPPs). 

There will be a legislative obligation on ‘relevant planning authorities’ (usually local councils) to ‘give effect’ to a district plan or (if there is no district plan) the regional plan when preparing planning proposals (for rezoning).  A similar obligation is placed on local councils in relation to LEP reviews.

The usefulness of this new statutory obligation will probably depend on what district plans actually say.  If the new district plans are (like past strategic plans) very general documents, local councils will still end up having a wide discretion in the preparation of planning proposals.  On the other hand, if districts plan set very clear parameters around the desired built form/density/land use outcomes in important precincts and corridors (together with numerical performance measures) the new statutory obligation to ‘give effect’ to district plans may be very significant.  

Based on the government’s announcements, it will be the job of the Greater Sydney Commission to enforce the obligation of Sydney’s local  councils to ‘give effect’ to district plans.  It seems that the government will give the Commission the power to do this by delegating existing ministerial powers (currently assigned to the Department of Planning and Environment) to the Commission.  This would enable the Commission to appoint, say, the Sydney Planning Panel to prepare planning proposal(s) if a local council is not ‘giving effect’ to district plans in its decisions. 

Next steps

The Opposition has been supporting the Commission proposal since it was first mooted last year.  If nothing changes in the next couple of weeks, it is very likely that this legislation will move through parliament quickly.  This would allow the Commission to be established within the timeframe nominated by the government (ie the end of the year).  The government has not yet announced who the members of the Commission or the Sydney Planning Panel will be.

The creation of the Greater Sydney Commission has the potential to significantly improve the efficiency and transparency of the planning system.  If it is implemented well, we may now finally see better decision-making that services the needs of Sydney as a whole, as well as individual communities.