THE CONTEXT

The release of the ‘A New Planning System for New South Wales – White Paper’ yesterday represents the final stage of the comprehensive review of the state’s planning system, which was initiated by the NSW Government in July 2011. After the release of the Green Paper in July 2012, community members, businesses, organisations and industry practitioners were invited to give final comments on the proposed areas of reform. The White Paper aims to set out the recommended reforms in a way that elaborates on the contents of the new planning system and provides a response to the questions and issues raised in the submissions received on the Green Paper.

The White Paper is accompanied by two exposure Bills which will eventually form the basis of the new State planning legislation. The content of the White Paper and Bills (Reform Package) will be open for public comment until 28 June 2013.

PURPOSE OF REFORM

The NSW Government’s stated purpose in introducing a new planning system is “to promote economic growth and development in NSW for the benefit of the entire community, while protecting the environment and enhancing people’s way of life.”1 The White Paper places an emphasis on the term “sustainable development”, being the “the integration of economic, environmental and social considerations in decision making, having regard for present and future needs.”2

WHAT ARE THE CHANGES?

The Reform Package builds on five key focus areas, originally identified in the Green Paper as “major transformative changes”. They are:

  • Changing the planning culture referred to as the “delivery culture”.
  • Community participation.
  • Introducing a strategic planning framework.
  • Development assessment.
  • The provision of infrastructure.

Important complementary changes will also be made to building regulation and certification to ensure better quality of construction and fire protection over the life of buildings.

More information on the substance of each of these proposed changes is set out below.

MAJOR TRANSFORMATIVE CHANGES

Delivery culture

The culture envisaged in the White Paper proposes to focus less on “statutory planning in isolation, repetitive processes and bureaucratic procedures”3 and more on “a system that promotes participation and which emphasises strategy, outcomes and innovation”.4

The Department of Planning and Infrastructure (Department) has proposed a number of measures to effect a change in the culture of planning administration in NSW. These include:

  • the establishment of a Culture Change Action Group;
  • training sessions in all areas of the new planning system;
  • monitoring and reporting on cultural change every two years (inclusive of performance monitoring at a system wide and strategic planning level);5
  • restructuring of the Department so that the structure emphasises strategic planning and community participation;
  • appointment of a Deputy Director General of Culture Change; and
  • providing professional guidelines and best practice direction

Community participation

The new planning system will have a markedly greater emphasis on “early and effective” community participation.

Legislative Measures

A Community Participation Charter will be introduced to serve as a guide to the appropriate levels of community participation.

There will be a positive obligation imposed on planning authorities to “act consistently with the Charter when undertaking strategic planning and development assessment”.6

Every planning authority will also be required to prepare a Community Participation Plan which outlines “what community participation measures they will adopt for different planning actions”.7

Every planning authority will be required to identify details and opportunities for community participation in the development of any NSW Planning Policy, Regional Growth Plan, Subregional Delivery Plan or Local Plan (these are considered later).

When draft plans are being exhibited, a minimum 28 days for exhibition will apply. Similar regulations will apply for the consideration of submissions.

An ePlanning portal: a “one-stop-shop” online planning service will also be introduced which will incorporate:

  • an online search facility where the public can easily access all applicable development standards;
  • an online register of planning consents tagged to individual properties; and
  • an additional mechanism for the community to visualise, understand, lodge, assess and track planning proposals.

Other principles

The Reform Package also emphasises:

  • that the principles contained in the Community Participation Charter will form the basis of new community participation guidelines, providing more practical guidance; and
  • the importance of early community involvement in planning.

These new community engagement requirements will be integrated with those already existing under the Local Government Act 1993 (referred to as a “Community Engagement Strategy”).

Strategic Planning Framework

Framework structure

The new planning system will introduce a Strategic Planning Framework designed to shift the emphasis away from the development assessment stage and towards a strategic, whole of government planning framework. The new framework seeks to facilitate the participation of all stakeholders in a manner consistent with the planning objectives on each level: metropolitan, regional or State.

The new hierarchy articulated by the framework is comprised of:

NSW PLANNING POLICIES (PPs)

  • An integrated set of plain English policies which guide planning at a State level.
  • The purpose of the PPs is to “articulate the government’s policy framework as it relates to land use, development and strategic planning.”8
  • The PPs will be made by the Director-General of the Department (DG).
  • The PPs will inform the content of plans further down the hierarchy.

REGIONAL GROWTH PLANS (RGPs)

  • The purpose of RGPs is to set out a strategic vision for each region of the State, with regional boundaries to be based on population and economic catchments.
  • RGPs will provide a framework for growth and specified outcomes for each region within a particular timeframe, which is currently set at 20 years.
  • This framework of RGPs will also include objectives, policies and actions for housing, employment and environmental obligations, which will then be implemented in Subregional Delivery Plans or Local Plans.
  • RGPs will identify regionally significant areas, existing and proposed transport and other infrastructure.
  • The DG can prepare a Regional Plan for any region in the State.

SUBREGIONAL DELIVERY PLANS (SDPs)

  • The purpose of SDPs is to translate the broad policies and objectives outlined in the PPs and RGPs into actions.
  • The SDPs will identify key areas or precincts, important from a State or regional perspective, for direct rezoning or development.
  • SDPs will focus on how the particular housing, employment and environmental targets within the subregion are to be achieved.
  • SDPs will be prepared by Subregional Planning Boards, new bodies comprised of representatives from each council in the subregion, representatives of the State appointed by the Minister, and an independent chair. Strong community participation is also envisaged.

LOCAL PLANS

  • Within the new framework, “Local Plans provide the legal mechanism for on ground delivery”9 of the PPs, RGPs and SDPs.
  • Local Plans are intended to centralise all planning provisions that exist in the relevant local government area.
  • Land use and development objectives that are identified within Community Participation Plans will be translated into the correlating Local Plan so that proposed changes are effected.
  • Local Plans are to be comprised of four parts:
    • Part 1 Strategic context: sets out how other plans are given effect in the area;
    • Part 2 Planning controls: zones land, identifies classes of development and specifies concurrence, referral and other assessment requirements;
    • Part 3 Development guides: includes guides relating to the carrying out of development; and
    • Part 4 Contributions requirements: provides for regional and local infrastructure contributions.10

Top-down planning

The legislation will contain a requirement that each plan gives effect to the other plans further up the hierarchy to guarantee an “integrated approach.” All plans are to be certified by the planning authority against the new legislation. The Department will also be under an obligation to consider submissions by the public, public authorities and the Subregional Planning Board, where relevant (see below).

When making Local Plans, the Minister has the power to make, amend or replace any component of a Local Plan to correct minor errors, rezone land, expedite projects with minimal impacts or progress projects which have not been dealt with appropriately by planning authorities. The Minister may also delegate certain powers to local councils and other planning authorities.

Integration of the new framework

According to the NSW Government, the strategic policies and objectives included in existing State Environmental Planning Policies (SEPPs), Strategic Regional Land Use Plans and Section 117 Directions will be incorporated into the new PPs, where applicable and relevant.

This existing framework will, under the new legislation, sit within the Planning Controls and Development Guide sections of the relevant local plan and cannot be overridden by the planning authority under delegation. For example, the land use and development controls currently within the State Environment Planning Policy (Infrastructure) 2007 will be inserted into each Local Plan, so that councils will not be able to amend these provisions or insert inconsistent provisions.11

Referrals, concurrences and other planning related approvals

The White Paper will spur the undertaking of a comprehensive, whole of government review of the existing system of referrals, concurrences and other planning related approvals. This will be undertaken within four months of the release of the White Paper.

As a result of this review, the government plans to remove referrals and concurrences seen as unnecessary and replace less complex referrals and concurrences with development guides, web based assessment tools and mandated standard conditions. It is expected that strategic planning will also reduce the need for referrals, concurrences and other planning related approvals.

The Department will now be the new “one-stop-shop” for all referrals, concurrences and other planning related approvals. It will manage contact with business, industry and councils and also project manage any remaining referrals, concurrences and other planning related approvals.

Development Assessment

The new assessment system

The new NSW planning system will involve one assessment system with different tracks. The appropriate assessment track for development will be dependant on the zone that is applied in a particular area, as summarised in the diagram below extracted from page 18 of the White Paper.

Click here to view diagrams.

The relevant assessment tracks to be used are:

  • An exempt track (existing)

Home or business owners will be able to carry out small scale developments in the absence of approval, so long as the rules in the Local Plan are complied with.

  • A complying track (existing)

More substantial developments by home or business owners will require one approval and involve certification by an accredited council or private certifier. 

  • An intermediate code track “for more complex developments that require professional planning expertise”

Specific types of proposed development will need to be code assessed, under circumstances identified in the Local Plan. Relevant development includes townhouses, mixed use developments, tourist accommodation, child or aged care facilities or new commercial buildings.

  • Merit assessment (existing)

Any proposed development permitted under the Local Plan that does not form part of the core uses in the zone, or that is likely to have significant impacts that cannot be fully addressed by code standards, will be subject to merit assessment.12

This category will be used when a development application cannot be streamlined into any of the other tracks.

Set out above is a summary diagram of the different tracks extracted from page 124 of the White Paper.

A PP will be introduced which establishes targets for each assessment track for specific council areas. The appropriate assessment tracks for each area will be identified in Local Plans.

Variations and deviations from development standards are permissible, providing council approval is obtained.

Development that complies with the standards in the Local Plan cannot be refused or approved with more stringent requirements. Councils will not be able to halt code assessment development when it is in compliance with the prescribed framework. This means that a proposed development’s compliance with a Local Plan will have to be sufficiently detailed upfront.

Development with the potential to have high environmental impacts will always be merit assessed as an “EIS assessed development”, involving an environmental impact statement.

The existing classes for State significant development (SSD) will be retained.

Appeals and reviews

Merits appeal rights will generally remain unchanged. The new measures propose to expand the use of mandatory conciliation-arbitration and a new “very fast” appeal track in the Land and Environment Court will be established to consider appeals on single residential dwellings and dual occupancies.

Provision of Infrastructure

The new planning system will place an emphasis on infrastructure that supports development, so that it is considered at the same time as planning for housing and jobs.

The legislation will prescribe that infrastructure is integrated with strategic land use planning, so that all strategic plans apply a consistent infrastructure approach.

Growth Infrastructure Plans (GIPs) will be introduced for the purpose of integrating land use planning and associated infrastructure. Although these plans will be substantially prepared by the NSW Government, councils will be given a role in growth planning through Subregional Planning Boards, which will work with the State Government in the development of subregional growth infrastructure priorities. Additionally, there will be an opportunity for community and stakeholder consultation before any GIP is finalised.

GIPs will be informed by priorities identified in SDPs, and will contain:

  • subregional performance outcomes;
  • 10 year and 5 year spatial infrastructure requirements for growth areas;
  • an approved prioritised growth infrastructure delivery schedule with funding allocation for projects within the first 5 year period;
  • proposed private sector participation;
  • a regional infrastructure contributions schedule; and
  • accountability arrangements and performance monitoringrequirements.

It is proposed that provision be made for the introduction of contestability assessments for all infrastructure provided in the GIPs. Contestability assessments will be relevant at all “growth” stages in the planning process, so that opportunities for contribution will be available at an earlier stage. Private sector providers will be invited and encouraged to design, deliver and operate regional and local infrastructure for new greenfield developments and urban renewal projects. The changes are being introduced to promote competition.

The government also plans to introduce and implement a simplified planning process for high priority infrastructure projects. For projects designated “Public Priority Infrastructure Projects” by the government, further planning approval will not be required. The identification of these projects will be determined by government “opinion” and the presence of these projects in a high level NSW Government strategy, such as the NSW Long Term Transport Master Plan.

Building Regulation and Certification

The introduction of the new planning system will occur in tandem with the review of the current building regulation and certification requirements. In preparing the proposals outlined in the White Paper, the Department consulted with and has included input from the Building Professionals Board, the Fire Protection Systems Working Party, and the NSW Building Regulation Working Party.

The proposals outlined in the White Paper have a four-pronged focus:

  1. Improving building regulation and certification;
  2. Construction compliance;
  3. Improving performance and compliance over the life cycle of a building; and
  4. Support systems and governance.

Improving building regulation and certification

The new system proposes to specify who can prepare and certify different categories of buildings. The body or parties who have this capacity is currently undefined in NSW planning policies.

Additionally, the legislation will set out overarching objects for building control, which will emphasise the necessity of applying minimum standards, complying with planning standards and appreciating the importance of a building’s longevity.

The legislation also proposes to shift some focus from the planning approval stage to the construction certification stage. The current emphasis on building issues in the planning approval stage will be taken out and left to the construction certification stage with building certifiers to address building requirements when issuing construction or complying development certificates.

Construction approval will be undertaken by one building certifier, who will overtake the current roles of certifying authority and principal certifying authority. The building certifier will issue the relevant occupation or completion certificate at the end of the work, and prepare a compliance report which incorporates the relevant BCA standards.

Better construction compliance

So that construction can be managed more effectively and efficiently, the following measures are contemplated by the new planning regime:

  • the distribution of completed certificates among relevant parties;
  • greater definition in the roles and responsibilities of the building certifier, the consent authority and the council;
  • more integrated planning between structural, mechanical, electrical and fire systems;
  • mandatory inspections;
  • requiring occupation certificates for portions of a building that can be occupied and compliance certificates for building work that cannot be occupied; and
  • the introduction of subdivision certifiers to deal specifically with issues of subdivision.

Improving performance and compliance over the life cycle of a building

To ensure ongoing compliance management, the existing fire safety schedule will be replaced with a building manual and a compliance schedule, which cumulatively will be wider in scope than the old model. Additionally, the existing fire safety certificate will be replaced with two new documents.

Support systems and governance

The NSW Building Regulation Working Party will continue its work with the objective of proposing a more integrated approach to building regulation.

The Building Professionals Act 2005 is also currently in the process of being reviewed, to place a greater emphasis on ongoing education and training of building professionals and to make data collection more systematic.

NEXT STEPS

The new legislation

The proposed changes are incorporated into two Exposure Bills. The two Bills have different functions: the first focuses on the substance and operation of the new system, while the second focuses on its administration and compliance issues.

The first bill contains content on:

  • principles and definitions;
  • community participation;
  • strategic planning;
  • development assessment;
  • infrastructure and environmental impact assessment;
  • concurrences, consultation and planning related approvals;
  • infrastructure and other contributions;
  • building and subdivision;
  • review and appeals; and
  • civil and criminal enforcement provisions.

The second bill contains information on:

  • planning administration and bodies;
  • orders, investigations and environmental audits; and
  • other miscellaneous matters including planning and building certificates and copyright.

The government has prepared a plain English summary of the legislative requirements of the Exposure Bills. The summaries are to be found here.

Transitional arrangements

Work will continue over the coming months on how the transition to the new system will be effected.

The government has, however, confirmed that planning and assessment processes that began before the new legislation commences will continue and be able to be completed without interruption or interference from the introduction of the new legislation. The new legislation will only operate for development initiated after the legislation has been enacted.

It has also been confirmed that existing regional and subregional strategies will not be discarded, with the relevant aspects being transitioned into the new plans. The operation of recently introduced State planning initiatives, including the Strategic Regional Land Use Plans and SSD, will not be affected.

During the public consultation process, the Department will continue to work with key stakeholders to develop transitional provisions in more detail. More information will be provided on the proposed arrangements when the legislation is introduced into Parliament.

Resourcing of the new system

It is envisaged that the shift to strategic planning which is put forward by the new system will necessitate additional upfront costs for planning authorities, industry and developers, particularly in the first few years of the new regime.

More local government and stakeholder consultation on this issue is envisaged over the next few months to select a model for funding the changes.

What happens now?

The White Paper and Exposure Bills will be open for comment until 28 June 2013. Submissions can be made via email or mail, with the relevant information available on the Department of Planning and Infrastructure’s website here

Following the feedback period, a report on the community and stakeholder feedback on the White Paper and Exposure Bills will be prepared. The government will then finalise the proposals, settle the accompanying legislation, and release more details for transitional arrangements to the new system.

Harmony with other NSW planning policies

For the planning reforms set out in the White Paper to be effective, they must accord with other major planning strategies previously developed by the NSW government, being:

  • New South Wales 2021 – a strategic business plan which sets out the NSW Government’s resource allocation in conjunction with the NSW Budget. Click here to read;
  • New South Wales Long Term Transport Master Plan – an overarching strategy to integrate land use planning with transport and transport infrastructure planning. Click here to read;
  • State Infrastructure Strategy – a strategy which outlines significant urban and regional projects and reforms across transport, freight, aviation, energy, water, health and education. Click here to read; and
  • Draft Metropolitan Strategy for Sydney to 2031 – a strategy which sets out the framework for how Sydney will grow over the next twenty years, with regard to the creation of jobs, housing supply and the development of Sydney’s public infrastructure and transport system. Click here to read.

The White Paper specifically states that it will be informed by, and be consistent with, the priorities and actions outlined in the New South Wales 2021 strategy. This relationship will be tightened over time through the aligning of the review process for each of these documents.

The relationship between the White Paper and other planning policies is to be further reinforced by the incorporation of land use and development related aspects of the New South Wales Long Term Transport Master Plan and the State Infrastructure Strategy into the PPs under the proposed new planning regime. RGPs will also incorporate policies and actions contained in existing regional strategies, with the new Draft Metropolitan Strategy for Sydney forming the basis of the RGP for Sydney. A further suite of plans will cover the balance of the State. Specific projects such as the North West Rail Link, WestConnex, Pacific Highway upgrades and the Northern and Southern Sydney Freight Corridors, which are outlined in both the NSW Long Term Transport Master Plan and the State Infrastructure Strategy, will be incorporated and facilitated by the reforms proposed in the White Paper, in order to minimise the risk of land use conflicts.

For an analysis of the implications of the White Paper, see our Thinking Piece here.

Primary issues likely to be the subject of public submissions include:

  • the shift to strategic planning and the effectiveness of community participation upfront; and
  • structuring of contributions.