Posted on November 28, 2013 by

Planning Bill in the Balance

Following its introduction to the Legislative Assembly on 22 October 2013, the Planning Bill 2013 (Bill) faced its first real test on 26 and 27 November  in the Legislative Council and was found wanting.

An unusual alliance of Labor, the Greens, the Shooters Party and Fred Nile’s Christian Democrats put a bedazzling array of amendments to the Bill which fundamentally changed its scope and impact.  Over 60 amendments were made to the Bill, so it is difficult to assess what has changed and what remains, but the salient features appear to be:

Code assesment deleted. Division 4.4 has been, in the words of one upper house member, ‘gutted’.  This is a critical change.  The Better Planning Network lobbied hard for this change.  Developers could side step Council scrutiny by seeking to build within parameters set by the Code for the parcel they are developing.  This has been removed.

The deletion was passed by a single vote in the Council.

Amendment of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP). With Labor and Greens support the Shooters Party made amendments to the miscellaneous provisions in the Bill which will have the effect, if the Bill becomes law, of negating the effect of provisions in the SEPP.  The provisions will affect clause 12AA (which makes financial, employment and royalty amounts the paramount consideration when assessing mining development) and 12AB (which sets out non discretionary standards for mining projects) of the Mining SEPP.

The provisions inserted into the Bill state that A provision of a strategic plan (including a planning control provision of  a local plan) cannot be made if it provides that the significance of a mining resource is the principal consideration of a consent authority when determining an application for development consent or if it provides for non discretionary standards in the determination of an application for development consent to carry out mining.

Affordable Housing Contributions included. The Labor Opposition, with Shooters Party and Greens support, moved a new division 7.5. This division had been entitled Planning Agreements. The division is now entitled Affordable Housing Contributions.  (Planning Agreements have not been deleted, just renumbered).

Amended clause 7.26(1) states a consent authority can impose an affordable housing contribution on development to fund the provision of affordable housing in the area in which development is proposed to be carried out.

New clauses 7.26 to 7.32 go on to outline the quantum of contributions; nexus between the development and the affordable housing to be created; use of contributions; complying development; and appeal rights.

This will do more than reinstate the previous attempts at an affordable housing levy which was capped some time ago so as to apply only to a small number of Councils.  The amended division 7.5 makes the option available to all Councils.

The development lobby was looking for lower, not new and potentially greater liabilities, for developer contributions.

What happens next?

On Thursday 28 November 2013 the Minister for Planning informed the Legislative Assembly that the Government would consider its response to the Council’s amendments to the Planning Bill during the summer recess.  The Bill’s fate will not be determined until 2014.