Posted on June 4, 2013 by Megan Hawley

Strategic Planning under the White Paper

One of the key reforms proposed in the Exposure Draft Planning Bill 2013 (Planning Bill) and the A New Planning System for NSW – White Paper (White Paper) is a new hierarchy of strategic planning documents aimed at ensuring a clear line of sight between the different layers of planning controls.  Whilst that aim may ultimately be achieved, in the interim, there will be some challenges and opportunities for planning and development in the state.

Summary of new types of plans

The Planning Bill proposes a new hierarchy of plans and policies known as ‘strategic plans’, as follows.

NSW Planning Policies are proposed to:

•  be prepared by the Director-General and made by the Minister;
•  contain principles and policies in relation to planning for infrastructure, development assessment and other planning related matters; and
• have no development controls. Development controls in existing state environmental planning policies will appear in Local Plans.

 Regional Growth Plans are proposed to:

• be prepared by the Director-General and made by the Minister in respect of any region in the State;
•  identify a range of matters including strategic planning for the region,  infrastructure (existing and proposed for the region), targets for planning outcomes including in respect of housing,  employment and environmental matters, and regionally significant areas; and
• deal with matters a subregional delivery plan can deal with if there is no such plan for part of the region.

Subregional Delivery Plans are proposed to:

• be prepared by subregional planning boards and made by the Minister;
• only be made in respect of established ‘subregions’.
• identify infrastructure (existing and proposed) in the region, any significant areas in the subregion, and how outcomes in a regional growth plan are to be achieved in the subregion; 
• contain planning controls and processes for growth areas in the subregion. However the Planning Bill does not specify criteria for establishment of growth areas;
• prescribe exempt and complying development or development for code assessment in the subregion; and
•  perform the function of a regional growth plan for an area in respect of which there is no regional growth plan.

Local Plans are proposed to:

• be established for each local government area by operation of law (see s3.10 of the Planning Bill);
• contain 4 parts: strategic context, planning controls, development guides and provisions regarding contributions to infrastructure or biodiversity offsets;
• be prepared by local government, other than the infrastructure provisions which are prepared by the Director-General.

In addition, Part 7 of the Planning Bill provides for the making of local infrastructure plans  and growth infrastructure plans to provide for local infrastructure contributions and growth infrastructure contributions respectively. The infrastructure provisions of the Local Plan will set out what types of development will have to pay contributions, and in what amount. The local infrastructure plans and growth infrastructure plans will detail the infrastructure for which local infrastructure contributions and regional infrastructure contributions are to be required. A further post will explain the new infrastructure provisions in more detail.

The ‘clear line of sight’

The Planning Bill requires each type of strategic plan to give effect to the policies and principles in the strategic plans higher in the hierarchy.

This is more than a requirement for consistency between the different strategic plans. The words give effect to suggest that the provisions of each strategic plan must not only not offend the provisions of the higher level plans, but must also contain provisions to implement the principles and policies in the higher level plan.

There is nothing in the Planning Bill to the effect that a strategic plan will have no effect to the extent it does not ‘give effect to’ the higher level plans. However, all strategic plans are made by the Minister, so presumably a plan which does not give effect to higher level plans would not be made.

Also, the strategic context provisions in the local plan must explain how the plan gives effect to higher level plans, and the consistency of a development with that strategic context will be a relevant matter for consideration in the development assessment process.

The intention is that once the Planning Bill becomes law,  Schedule 12 and the associated regulations will provide that existing local environmental plans will continue in force as part of the local plan for the relevant area. Clearly, whilst existing plans remain in force,  it is unlikely that they will ‘give effect to’ any new, higher level strategic plans which might be made.

Even if it is accepted that the new strategic planning system will ultimately result in ‘a clear line of sight between each successive layer of planning‘ as the White Paper suggests, that can surely only be achieved after many years once all local plans are reviewed and brought into line with higher level strategic plans, once made.

To prepare all higher level strategic plans for the state involves a significant commitment of time and resources. The process of updating local plans to give effect to those higher level plans would also be lengthy. It is noted that the process of standardising local environmental plans under the existing Environmental Planning & Assessment Act 1979 (EPA Act) commenced in 2006, and is still not complete. The achievement of consistency in the hierarchy of plans is therefore likely to be some way off. 

Transitional Issues

In the interim, there will be some issues for consent authorities in determining development applications. For example, it is difficult to see how consideration can be given to a developments consistency with the ‘strategic context’ provisions of the local plan, before the local plan is reviewed in light of higher level plans. The transitional provisions may shed some light on this issue.

The Planning Bill does provide for strategic compatibility certificates which address some transitional issues.

A site compatibility certificate can be issued by the Director-General to make development which is prohibited under a local plan permissible if the local plan has not yet been amended to give effect to a regional growth plan or subregional delivery plan, and the development is consistent with that higher level plan.

Such certificates could represent a significant opportunity for developers whose proposals comply with regional or subregional plans to obtain a consent before detailed controls are introduced in respect of such development in the local plan. The certificate operates in some ways as an in principle approval, as development consent cannot be refused on grounds and conditions cannot be imposed which relate to matters dealt with in the certificate.

Development guides

The requirement for strategic plans to give effect to higher level plans is mirrored in the requirement that the development control provisions of a local plan are to ‘give effect’ to the planning control provisions and facilitate permissible development.

The Planning Bill also provides that to the extent that development guide provisions are inconsistent or incompatible with the planning control provisions of the local plan, they will have no effect. This is consistent with the modifications made to the  EPA Act earlier this year in respect of development control plans.

It is not clear whether existing development control plans will be saved under the proposed transitional arrangements, so that they will become part of the ‘development guide’ provisions of the local plans. Many existing development control plans are unlikely to conform to the requirements for development guides in the Planning Bill.

The status of the development guide provisions of a local plan, once the Planning Bill is enacted, is also unclear.

Whilst the White Paper states that all provisions of a local plan are to be considered in a merit assessment of a development application, s4.19 of the Planning Bill only requires consideration of the development guide provisions of the local plan to the extent that they contain ‘development assessment codes’.

‘Development assessment codes’ are codes for development set out in the development guide provisions of a local plan. Such codes are to describe performance outcomes for development and identify acceptable solutions for achieving those outcomes.  It is not clear from the Planning Bill that all development guide provisions must take the form of development assessment codes, although that would seem to be the intention from the White Paper. Any development guide provisions which are not ‘development assessment codes’ are not relevant to a merit assessment of a development application.

If there are savings provisions in respect of existing DCPs, many may have little effect in the development assessment process if they do not already take the form of a development assessment code.