As everyone knows, the NSW Government has now released its long awaited White Paper and Draft Exposure Bills aimed at creating a new planning system for NSW.
This e-alert provides some first impressions and summarises key issues, to be discussed in more detail at Hunt & Hunt's White Paper Workshops to be held at our Sydney offices on 14 and 15 May 2013.
Like the Green Paper last year, the Planning Bill attempts to balance community participation and economic growth by emphasising community participation at the strategic planning stage while facilitating approvals for compliant development. This will require the public to familiarise themselves with strategic planning processes, which has hitherto not been a major platform of community engagement.
At the development assessment stage, the expansion of code compliant development is a welcome improvement to approval timeframes, but will depend on how flexible and comprehensive the codes are. The White Paper intends that up to 89% of development applications will be code assessed.
The hierarchy of planning instruments - from state to regional to subregional and local plans - offers good direction for economic planning in NSW. New plans will take time to draft and the White Paper does not expand on transitional details. Government at all levels will need to enforce the hierarchy to produce certainty and direction in development. The Standard Instrument will remain the same. The number of concurrences is meant to reduce by better strategic planning, with a proposal for a "one stop shop" for future concurrences similar to current integrated development processes.
Infrastructure levies will continue to dog the planning system. The stipulation of local and regional contributions offer some clarity on the methods of collection but not on the quantum that might be imposed. They are similar in character to s.94's/94A's and SIC's. No new models for infrastructure funding has been suggested. The new Biodiversity Offset Contribution risks adding yet another mechanism to the issue of biodiversity management, alongside biobanking, biocertification and species assessment, but without clear analysis of how the environmental benefit will be reconciled to a financial contribution. The inability to appeal Regional and Biodiversity Offset Contributions to the courts is of grave concern.
The intent is to reduce the use of Voluntary Planning Agreements by limiting them to infrastructure identified in a Local or Growth Infrastructure Plans, affordable housing and environmental conservation works. This will ease concerns that VPA's are used for unquantifiable infrastructure needs. The detail within Local Infrastructure Plans should clarify whether environmental conservation can include riparian upgrade works.
The culture of assessment is intended to be guided by the various principles relating to community participation and strategic planning. The work needed to facilitate interaction between the public and private sectors will be supported by Culture Change Action Group, comprising members of a range of stakeholder groups, to design and implement a range of cultural change actions and a new Deputy Director General of Cultural Change.
Transitional provisions have not been exhibited, which leaves a lot to be addressed, as making the range of plans will take a long time.
KEY OBJECTIVE OF THE NEW PLANNING SYSTEM
The White Paper states that the key objective of the new planning system will be "to promote and enable economic growth and positive development for the benefit of the entire community, while protecting the environment and enhancing people’s way of life."
It will achieve this by being "simpler, more certain, more strategic and performance based, working within a positive planning culture. Decision making under the new system will be transparent and accessible, with people, businesses and organisations having the choice to be fully engaged in the decisions that shape their local area and economies. Strategic planning will be fully integrated in land use planning decisions".
There are two Draft Exposure Bills:
- The Planning Administration Bill 2013, which will establish the roles of the various approval bodies (the Department of Planning and Infrastructure (Director General), the PAC, JRPP's and Sub Regional Planning Boards)
- The Planning Bill 2013, which will govern all aspects of planning - strategic plan making, development assessment, certification etc.
ACHIEVING THE KEY OBJECTIVE
Consistent with the Green Paper which was issued last year, the White Paper proposes a series of measures to achieve the key objective:
Up-front community participation during the strategic planning stage remains a cornerstone of the White Paper, acting as the balance between public involvement and more timely development assessment.
Section 2.1 of the Planning Bill sets out seven principles of the Community Participation Charter proclaiming the community's right to participate in "planning" and to have access to information and the requirement of transparency in decision making. Every approval body will be required to prepare Community Participation Plans demonstrating how the Community Participation Charter will be implemented, and minimum exhibition timeframes are listed in part 1 of Schedule 2.
Comment: This will place much more responsibility upon the public to become familiar with planning instruments, which can be complicated and opaque in how they affect daily living. However past experience shows the public more readily responds to a particular development proposal than a statutory planning scheme, which risks a political backlash to this up-front proposal.
An essential strength of the proposed planning system will be the ordered hierarchical regime of strategic plans governing a top down approach to planning in NSW. Section 3.3 of the Planning Bill sets out 10 principles of strategic planning which includes such elements as the promotion of the State's economy and productivity through facilitating housing, retail, commercial and industrial development, integration with infrastructure provision and co-operation between planning authorities.
The hierarchy of plans under Part 3 of the Planning Bill is:
- NSW Planning Policies made by the Minister to address high level matters such as employment, housing supply, agricultural and rural resources etc
- Regional Growth Plans made by the Director General for regional planning of infrastructure and other regional planning needs
- Subregional Delivery Plans made by Subregional Delivery Planning Boards covering the same as Regional Plans, but on a smaller scale, providing more detail on how housing, employment and environmental targets identified in Regional Growth Plans will be implemented
- Local Plans made by a local council, covering the myriad of issues currently addressed in LEP's DCP's and Contributions Plans. These will be made according to the same Gateway process as now stands.
Under section 3.11 of the Planning Bill, Local Plans will cover:
- Strategy – explaining how the superior plans are given effect in the local area
- Planning Controls – setting land use and zoning standards
- Development Guidelines – providing more detailed standards for development similar to a DCP
- Contributions – setting out local and regional infrastructure contributions.
Comment: The hierarchy of plans provides a welcome certainty to businesses which are planning future development projects. More detail is needed to see how they will interact with other polices. The draft Sydney Metropolitan Strategy 2031 will become a Regional Plan. Whether the plans make development assessment simpler will depend on the level of detail in Local Plans.
Part 4 of the Planning Bill governs development assessment. The Planning Bill aims for simplicity by a system of code assessment and merit assessment.
Code assessment will cover:
- Exempt Development – as per the current system
- Complying Development – as per the current system, but with increased reliance on housing codes, to overcome the lag in NSW housing supply. The Regulation is expected to require that a consent authority determine an application for complying development within 10 days, or if the application involves a part variation of the complying development controls, within 25 days
- Code Assessable Development – development which meets the standards or performance outcomes in the development guidelines section of a Local Plan cannot be refused development consent (section 4.18). The Regulation is expected to require that a consent authority determine an application for code assessable development within 25 days (where the proposal meets acceptable or alternative outcomes) or within 50 days (where the application is consulted and proposes alternative acceptable outcomes)
- Merit assessment – remaining development that needs full assessment on its merits, to the extent that it is not code assessable. The Regulation is expected to require that a consent authority determine applications relating to local and regional development within 50 days or if the application relates to designated and state significant development, within 90 days.
Comment: Code assessment is the flipside of community participation at the strategic level: once standards and objectives are set, there is less room for public complaint. Difficulties may arise in practice if the Local Plans are too restrictive in what they allow as Code Assessable Development.
Strategic compatibility certificates can be issued by the Director General where a Regional or Subregional Plan has been made, but a Local Plan otherwise prohibits the proposal. The certificate effectively replaces the Local Plan provisions, and a development application may be lodged within two years of the certificate being issued, and cannot be refused insofar as the certificate relates to the proposal (See sections 4.32-4.36).
In a number of areas, the Planning Bill retains the substance of current practices:
- Assessment criteria - section 4.19 of the Planning Bill is the new s.79C, and covers a similar range of issues
- "Development" is the same as now – subdivision, building, demolition, a work of use of land (section 1.6)
- Conditions of consent - the provisions about conditions of development consent are substantially unchanged (section 4.24)
- Deemed refusal will still apply (and not a deemed approval – section 9.11). While the Planning Bill leaves it to the regulations to specify the deemed refusal period, there is no reason to anticipate that it will be different from current practice
- Modifications - section 4.38 is the new s.96, and is substantially unchanged
- Lapsing of consents is the same (section 4.43 and schedule 4, para 4.1)
- State Significant Development and regionally significant development are substantially unchanged and the Minister retains his/her call in powers (section 4.29)
- Building Certification - the current range of post DA building certification will remain for Construction Certificates, Occupation Certificates, Subdivision Certificates and Compliance Certificates (a CC still cannot be issued for works already undertaken)
- Appeals and reviews will be substantially unchanged, with some appeals fast tracked for single residential dwellings and dual occupancies. The same six month period applies.
THE MONEY - INFRASTRUCTURE LEVIES
The Planning Bill envisages:
- Local contributions based on the Contribution sections of Local Plans (sections 7.4-7.14), whether direct (like s.94) or indirect (like s.94A), payable to the local council. Contributions are to be applied to their specified purpose within three years of collection unless the Minister extends that timeframe (section 7.9(5))
- Regional Infrastructure Contributions (sections 7.15-7.21) identified in Local Plans, payable to the Regional Contributions Fund. Importantly, these cannot be appealed to the land & Environment Court
- Biodiversity Offset Contributions (sections 7.22-7.27) identified in Local Plans payable to the Biodiversity Offset Fund administered under the Threatened Species Act. Biodiversity offset contributions cannot be appealed in the Land & Environment Court.
Affordable housing contributions will not form part of the new regime. The issue of affordable housing is intended to be addressed as part of the strategic planning process.
Comment: The issue of infrastructure levies will always be a problem. Whether called local and regional contributions or s.94's/94A's and SIC's, the real issue will always be the quantum. No new models for infrastructure funding has been suggested.
The new Biodiversity Offset Contribution is of concern, as it is not clear how it links with established regimes such as biobanking, biocertification and species assessment, and it is not yet clear how Biodiversity Offset Contributions will be calculated by reference to the environmental benefit.
The inability to appeal Regional or Biodiversity Offset Contributions is a grave concern, as these pose considerable risks to development costs. Local contributions can be appealed on the basis of reasonableness, as now.
There is no need to prove a nexus between the proposal and Regional or Biodiversity Offset Contributions, which is another concern. Direct Local Contributions need a nexus (like s.94's) while indirect Local Contributions do not (like s.94A's).
ThePlanning Bill also makes provision for the Minister to make:
- Local Infrastructure Plans drafted by the local council to identify local infrastructure needs
- Growth Infrastructure Plans drafted by the Director General to identify local infrastructure needs.
Planning Agreements are administered as currently, but have been severely narrowed in scope. The Planning Bill limits them to:
- Funding infrastructure identified in a Local or Growth Infrastructure Plan (or where there is no Infrastructure Plan, a Ministerial Order)
- Affordable housing identified in a strategic plan
- Environmental conservation works.
Comment: The White Paper continues – perhaps without justification - the Green Paper's suspicion of VPA's which many developers and government agencies found useful. The Government wants to reduce their use by limiting them to specified infrastructure. This at least will ease concerns that VPA's are used for unquantifiable infrastructure needs. The detail within Local Infrastructure Plans should clarify whether environmental conservation can include riparian upgrade works.
LASTLY - CULTURE
The White paper acknowledges the need for the new planning system to be supported by an administration that has an "outcomes focussed, problem solving attitude". It aims to achieve this by establishing:
- a Culture Change Action Group, comprising members of a range of stakeholder groups, to design and implement a range of cultural change actions
- a Deputy Director General of Cultural Change to "forge relationships between the department and planners".
Comment: The cultural of professional administration is essential to the effective implementation of any planning system. It will be a welcome advance if the new regime can achieve a constructive planning culture.
Numerous advances are proposed in the White Paper, which if achieved, will promote a more efficient planning system
As with all such complex systems, the devil will be in the detail.