On 14 July 2012, the New South Wales (NSW) Government released a Green Paper entitled A New Planning System for NSW (the Green Paper). The purpose of the Green Paper is to:

  • respond to an Independent Review of the NSW planning system called The Way Ahead for Planning in NSW – Recommendations of the NSW Planning System Review, vol. 1 and vol. 2, which was completed by an independent panel established by the NSW Government; and
  • propose a blueprint for overhauling NSW's current planning system, including the replacement of the Environmental Planning and Assessment Act 1979 (EP&A Act).

The Green Paper proposes the following four fundamental reforms to the NSW planning system:

  1. Community and stakeholder participation: engaging communities and stakeholders early in planning decisions starting at the strategic planning stages, and ensuring transparency in planning-related information through the introduction of a dedicated electronic database;
  2. Strategic focus: shifting from a development assessment focus to a planning system based principally on strategic policies to guide growth and development;
  3. Streamlined approval: a faster and more transparent development approval process, aiming to maximise code complying development; and
  4. Provision of infrastructure: ensuring that infrastructure supports growth by integrating planning for infrastructure with the strategic planning of land use .

Each of these reforms is set out below.

To skip to the analysis of the Green Paper, please click here.

The Four Fundamental Reform Principles of the Green Paper

  1. Community and Stakeholder Participation

The Green Paper proposes a major shift to engage communities and stakeholders in planning decisions. Proposed strategies to engage communities and stakeholders include:

  • the development of a Public Participation Charter, which will be designed to:
    • recognise that the community expects and has a right to participate in plan making and development assessment;
    • set standards of community participation and support new methods of engagement with the public;
    • require information to be given in plain English so it is easy to understand; and
    • provide community members with feedback in response to the issues raised prior to a decision being made;
  • involving communities and stakeholders in the strategic planning for an area along with the local government and Government agencies in the development of Subregional Delivery Plans; and
  • the establishment of an electronic planning system which will centralise all planning-related information, from the statutory and policy instruments applicable to a particular site, to details in relation to a development application such as a development consent.
  1. Strategic Focus

The Green Paper proposes a shift in focus, from a planning system which has at its centre the development assessment process, to a planning system which is based on strategic planning policies. These strategic planning policies are intended to guide the growth and development in the State.

An overhaul of the current system of environmental instruments is proposed in favour of a reduced number of high level strategic plans covering key topics, based on which more detailed regional and local plans are to be developed as follows:

  • NSW Planning Policies developed by the NSW Government and adopted by Cabinet, which set out the high level planning direction, covering issues such as housing and housing affordability, employment, mining, costal planning and conservation. NSW Planning Policies will replace the State Environmental Planning Policies currently in place;
  • Metropolitan/Regional Growth Plans developed by the NSW Government which provide the principal direction on how the Government expects a region to grow over a 20 year period. These plans will incorporate clear accountability to deliver the proposed outcomes, performance measures and annual reviews of performance, links to funding for infrastructure;
  • Subregional Delivery Plans prepared jointly by local councils, NSW government agencies, the community and stakeholders. Subregional Delivery Plans:
    • will only be prepared for a number of identified growth areas in Metropolitan Sydney, the Hunter and Illawarra;
    • will be underpinned by Sectoral Strategies prepared for each of the drivers of growth in the subregion. These strategies will provide the basis for integrated zoning and development criteria, wherever applicable;
    • will contain Growth Infrastructure Plans which are prepared by the Department of Planning and Infrastructure and identify the infrastructure needed to support development in high growth areas;
    • include directly rezoning land in key areas;
    • introduce three new zones: enterprise zones for investment ventures, characterised by very little or no development controls provided the proposed development does not result in adverse environmental impacts; future urban release zones for future use prior to programming infrastructure investment; and suburban character zones where an area's local character is to be preserved;
    • provide a framework for code based assessment in key areas for subsequent development; and
    • consolidate NSW Government agencies requirements for development in the subregion, reducing the need for obtaining their concurrence at a later stage; and
  • Local Land Use Plans prepared by local councils, which will include:
    • the strategic framework to be achieved;
    • zoning controls, based on a reformed standard instrument;
    • an outline of infrastructure to be provided to support development;
    • guidelines focused on performance based outcomes for development, including provisions for code assessable development;
    • key performance indicators and monitoring requirements to assess the Plan's performance in achieving the proposed outcomes.

Each one of these strategies and plans will have an in-built performance monitoring system, with information regarding performance being reported periodically. These documents are also subject to periodical reviews. 

  1. Streamlining Approvals

The Green Paper proposes an overhaul of development assessment and compliance as follows:

  • Depoliticised decision making: allowing independent and expert panels to make decisions on development applications. The Planning Assessment Commission (PAC) and the Joint Regional Planning Panel (JRPP) will continue to assess State and regional-scale development. The Green Paper proposes bringing JRPPs into the assessment process more by:
    • involving JRRPs in pre-lodgement meetings;
    • allowing both the council and the applicant to regularly brief the JRRP;
    • considering the provision of dedicated staff to JRRPs;
  • Strategic compatibility certificates: are introduced so that development which is consistent with metropolitan or regional strategies can be assessed and considered where the local land use plan has not yet been finalised and is preventing the implementation of the strategy;
  • Removing concurrences through strategic planning: a number of requirements which would require the concurrence of other Government agencies could be identified and resolved at the strategic planning phase so as to limit the number of concurrences at the development application stage;
  • Expansion of appeal and review rights: the Green Paper proposes expanding review procedures that are currently set out in sections 82A and 96B of the EP&A Act. It is proposed that such reviews be conducted by an expert who was not involved in the original decision making. Existing appeal rights under the EP&A Act are to be retained;
  • Matching the information required to the assessment stage: requesting only relevant material for the matter under consideration. Any matter that has been dealt with at another stage of the approval process must not be reassessed;
  • Code-complying development: councils and other consent authorities cannot refuse a proposal that complies with detailed building standards developed through subregional planning and they can only assess components that fall outside these plans on the merits.

For State Significant Development, the following specific changes are proposed:

  • State planning principles: these principles will be introduced to provide a better strategic framework in which to assess State significant development, rather than relying only on local matters included in the local land use plans;
  • Case management: introducing case management to application assessment for proponents, councils and other agencies;
  • Environmental Impact Statements: consultants that provide Environmental Impact Statements should be chosen from an accredited panel that sets standards regarding the impartiality and quality of their work. Where appropriate, the NSW Government is also considering options to codify requirements of Environmental Impact Statements;
  • Integration of State Significant assessment processes: the NSW Government will continue to integrate the State Significant assessment processes and look for additional opportunities to integrate other relevant State agency approvals;
  • Strategic level approvals: would see the approval of concept plans and the design of individual approval regimes for subsequent stages once the overarching approval is in place; and
  • Streamlining Director-General Requirements (DGRs): reducing the 28 day consultation period if not required and developing standard DGRs for different types of development.
  1. Provision of Infrastructure

The major proposed reforms relating to the provision of infrastructure delivery are as follows:

  • Private sector participation: the Green Paper proposes a greater role for the private sector in the delivery of key infrastructure in growth precincts. Competitive tenders are being proposed for larger government infrastructure projects;
  • Phasing out of Voluntary Planning Agreements or otherwise significantly modernising and simplifying them. Where Voluntary Planning Agreements continue, they are intended to be linked to larger precinct developments;
  • Growth Infrastructure Plans: to be prepared by the Department of Planning and Infrastructure to identify the infrastructure needed to support development in the high growth areas of the state. These Plans will have a 5-10 year horizon and they will be prepared in conjunction with the Subregional Delivery Strategies;
  • Public priority infrastructure: a new stream of development which, once a decision is taken for the project to go ahead at the strategic plan level, following community participation, the subsequent environmental assessment will focus on managing the environmental impacts of the project;
  • Contribution levies: three levies are being proposed to recover the cost of infrastructure:
    • Local infrastructure levy: these are contributions identified in a council's Local Infrastructure Plan. The levies would be used for infrastructure such as local roads, local drainage works and land for community facilities (not open space or drainage);
    • Regional open space levy: a proposed fixed levy per residential development in infill and greenfield areas. It will be used to fund the acquisition of local and regional open space land, local and regional drainage land or biodiversity conservation offsets; and
    • Regional infrastructure levy: could be levied on new developments. The levy would be used to fund new and upgraded regional roads, land for health and educational facilities or land for emergency service facilities.
  • The following mechanisms are proposed to ensure that the funds collected from the above levies are actually spent on infrastructure planning and delivery:
    • 'Beneficiary pays' principle: levies collected in a catchment area are spent on infrastructure within that catchment;
    • 'Earmarked' for infrastructure: levies collected will be identified as being for the provision of infrastructure, so as to avoid the funds going into consolidated revenue;
    • Budget reporting: reporting requirements through the budget are proposed in order to show the value of development contributions collected and how the funds have been allocated.

Analysis of the Green Paper

Our analysis of the Green Paper is structured under the four fundamental reform principles outlined above:

  1. Community and Stakeholder Participation
  • The Green Paper proposes a broader community and stakeholder participation which would occur at every level, from strategic planning phase to development assessment of a specific proposal. These rights are proposed to be embedded in the statute. This raises the issue of ensuring that the participation of the public is effective, and not just a formal procedural requirement which, once complied with, does not yield any results.
  • It is not clear what the legal status of the Public Participation Charter would be and, for instance, should the Charter be infringed, what effect this would have on the planning decision reached following that breach and what remedy the community and the stakeholders would have.
  • Under this proposal, the focus will shift to community and stakeholder participation at the strategic planning stages. While it is envisaged that the public can also participate at the development assessment stage, less opportunities will arise once specific developments are being proposed in particular if those developments comply with the planning strategy in place.
  • This important shift in focus also means that the public will need to change from raising objections once a development proposal is made at the local level, in their back yard, to participating in the process at an earlier stage when things are more abstract – namely when it is decided what direction the particular region should take.
  • While the Green Paper suggests that the NSW Government and local councils will seek new means of communicating with the community and stakeholders to inform them of such participation opportunities, heightened awareness from the community and the stakeholders will be required to ensure that they have an opportunity to be heard.
  1. Strategic Focus
  • This is a very ambitious overhaul of the entire planning system. It is highly likely that a full transition to the new regime will take many years, as strategic plans such as Planning Policies, Growth Plans, Delivery Plans are being prepared. Under the proposal, lower level strategic documents are meant to conform to State and regional strategic documents, which can cause delays in finalising all the documents and could give rise to uncertainty along the way.
  • The Green Paper provides limited information on the transition from the current regime under the EP&A Act to the new regime, except in the explanation provided to what proposals qualify for a Strategic Compatibility Certificate. It is expected that the White Paper will deal with some of the transition issues in more detail, in particular the way in which development application lodged under the current regime will be assessed and the interactions between environmental planning instruments created under the EP&A Act and the ones created under the forthcoming Act.
  1. Streamlining Approvals
  • The move towards depoliticising decision making is welcome. An improvement to the current proposal would be a transparent process for the naming or election of members of the independent expert panels such as the PAC, JRPP or IHAPS, without which, in time, these expert panels might lose some of their appeal because they are not accountable to the community and to stakeholders.
  • The removal of concurrence requirements through their incorporation into the higher level strategy documents is a bold move. While in some areas identified by the Green Paper, such as bushfire prone land, this is already achieved to a great extent under existing local environmental plans, it is not clear how such strategy-stage concurrence will work in practice for other areas.
  • The Green Paper proposes that fully complying development cannot be refused and will be approved within 10 days. It is unclear whether the 10 day period is enforceable or merely an aspiration. Accordingly, it is unclear what remedies a proponent may be entitled to if such a 10 day timeframe is not met.
  • It is not clear whether higher quality of work and impartiality could be achieved from having experts become members of an accredited panel in order to be able to prepare an Environmental Impact Statement. It is likely to depend on the stringency of the accreditation process, details of which have not yet been released.
  1. Provision of Infrastructure
  • A more integrated approach between development and infrastructure is welcome within the planning system.
  • The mechanisms proposed to ensure that the levies are spent on catchment-specific infrastructure projects in a transparent fashion constitute a positive development, though it is unclear whether any sanctions will be put in place for spending these funds on other infrastructure or on other things, apart from the "naming and shaming" effect of allowing the budget to speak for itself.
  • No new solutions were identified as to the calculation of the amount of the levies. As the levies are generally linked with new development, too high an amount may prove to be a disincentive for new development, too low an amount will mean that local and regional areas would not have sufficient funds to cover the cost of infrastructure.
  • The Green Paper presents this new category of development, Public Priority Infrastructure, as requiring a higher level assessment and being likely to require less documentation to prove environmental compliance. More details on the types of development to which the Public Priority Infrastructure system will apply are required in order to assess this new addition to the system.

Next steps

The Green Paper has been released for community and industry feedback. Submissions on the Green Paper will be accepted until Friday 5 October 2012. Please contact us if you would like assistance in preparing a submission.

Upon considering these submissions, the Government will then release a White Paper and an Exposure Bill, which will set out more detail about the new planning system.