Posted on September 11, 2012 by Lindsay Taylor

Planning Reform Green Paper – Some Issues to Think About

The Green Paper on planning reform in NSW, A New System for Planning for NSW, published by the NSW Government, proposes 23 transformative changes to the way land use planning and development assessment will occur in NSW but leaves many areas of the NSW planning system untouched or unclear.

The changes are grouped in 5 key reform areas.

The first area of reform is community participation. The following is proposed:

• Establishing a public participation charter
• Imposing a statutory requirement for consultation on strategic planning documents relating to subregional delivery plans
• Ensuring there is genuine and effective community consultation and stakeholder involvement
• Ensuring there is a plain English explanation of all planning documents
• Adopting evidence-based planning
• Ensuring there is a clear line of sight through the hierarchy of plans
• Increased use of the Planning Assessment Commission (PAC), Joint Regional Planning Panels (JRPPs) and local expert panels in order to depoliticise decision-making
• making strategic plans and policies, and information relating to DAs and approvals, available online.

If not managed properly in the new legislation, the proposed public participation charter could have significant unintended legal consequences for decision-makers.

The community participation model that will achieve genuine and effective community involvement in the new planning system is not yet known.

There is a strong likelihood that local communities will lose opportunities to object to specific development proposals under the new system as a trade off for increased participation at the strategic planning stage.

The e-planning reforms are obviously welcome but the types of community engagement tools that should be developed will need to be carefully designed and implemented. Copyright issues will be a significant hurdle in the implementation of e-planning.

The second area of reform is strategic planning. The following is proposed:

• 10-12 consolidated non-statutory NSW Planning Policies will replace the myriad of existing State Environmental Planning Policies (SEPPs) and Ministerial s117 directions
• Development controls in SEPPs will be collapsed into local land use plans and guidelines or incorporated into subregional delivery plans
• Non-statutory regional growth plans with a 20 year horizon, identifying development capacities, scenarios and targets, supported by market and feasibility data and containing 10 year growth targets for subregions will be introduced
• Subregional delivery plans setting development parameters and criteria to implement regional growth plans will be introduced
• Sectoral strategies and growth infrastructure plans underpinning subregional delivery plans will be introduced
• Newly formed regional planning boards will determine how subregions meet their obligations through subregional delivery plans
• Plain English local land use plans (LLUPs) will be introduced comprising four parts, being 1) an explanation of the strategic planning framework, 2) a spatial land use plan, 3) an outline of infrastructure requirements, and 4) development guidelines
• Councils will be allowed to amend LLUPs subject to consistency with the higher order plans
• Existing development control plans will be abolished and replaced with development guidelines contained in the LLUP
• Three new zones will be introduced, including an enterprise zone intended to capture development investment opportunities
• There will be generally more flexible zones.

The new strategic planning system for growth areas is multi-layered and could hardly be described as either simple or straightforward.

The criteria for determining regional and subregional land use planning boundaries will need to be carefully considered. It is possible that local government boundaries may need to change in the process.

Timeframes for the establishment and periodic review of the various strategic planning documents need to be clearly established.

The process for undertaking market feasibility analysis and development scenario testing for stategic plans in regional growth areas, whilst obviously a welcome initiative in pursuit of sensible, realistic and well-informed strategic plans, is likely to be highly resource intensive, costly and time consuming.

There is currently no information on whether or how the new strategic planning process will incorporate natural resource management or integrate land use planning with other regulatory systems relating to land or development.

There is a suggestion in the Green Paper that local councils, with the approval of regional planning boards, may be able to trade their growth targets but not enough detail is provided on when or how this may occur to be able to properly evaluate the proposal.

The third area of reform is development assessment and compliance. The following is proposed:

• There will be a hierarchy of generally depoliticised decision-makers
• The PAC and JRPPs will determine applications to carry out State Significant Development (SSD) and regional development, respectively
• Local expert panels, council officers or accredited certifiers will determine applications to carry out local development depending on whether the development is merit assessable or code assessable
• Code assessment will be introduced for development that conforms with a subregional delivery plan and must be approved wihin a prescribed timeframe
• Code assessment  development will be either consent authority code assessment or accredited certifier code assessment
• Strategic compatibility certificates issued by the Director-General (DG) of the Department of Planning and Infrastructure (DoPI) will enable conforming development to go ahead in the absence of a subregional delivery plan
• JRPPs will be allowed to review the DG’s decision not to issue a strategic compatibility certificate
• Different components of the one development project will be able to be code assessable or merit assessable
• For multi-stage development, code assessment will be able to follow the approval of a concept plan for the development
• Concurrence development will be abolished
• NSW Planning Principles (sic Policies?) will be required to be considered in determining SSD
• Existing requirements for Environmental Impact Statements (EISs) will be codified and streamlined and consultants preparing EISs must be chosen from an accredited panel
• State significant development proposals will have streamlined DG Requirements (DGRs), will be given an initial concept approval followed by streamlined stage approvals, and will be case managed by DoPI
• For staged development, any matter adequately dealt with at one stage in the development approvals process cannot be reassessed in a subsequent stage
• Prescribed development assessment times will apply
• JRPPs will be involved in pre-lodgment meetings, receive regular briefings by councils and applicants, and may be given dedicated staff
• An amber light approach to development assessment will require consent authorities to inform applicants of amendments to development applications that would render the development proposal acceptable
• Consent authorities will not be allowed to consider market demand issues when assessing development
• Guidelines on development consent conditions, and standardised conditions will be introduced
• Code assessable development will apply in relation to industrial, commercial and residential development
• Code assessment will be based on State-wide codes with regional variations
• There will be a 10 day fast track code approval by accredited certifiers for low risk low impact development
• There will be a 25 day fast track code approval for partly code assessable/partly merit assessable development
• There will be a 50 day approval for merit assessable development
• There is a proposal to review building regulation, which will be independently overseen with input from the Building Professionals Board
• JRPPs will be allowed to conduct reviews of council decisions not to refer planning proposals for gateway determination
• The DG of DoPI, with advice from the PAC, will be allowed to conduct reviews of gateway determinations
• JRPPs will be allowed to review the DGs decisions regarding strategic compatibility certificates and site compatibility certificates
• The use of existing s82A reviews (DAs) and s96AB reviews (modification applications) will be expanded.

There will need to be very clear criteria demarcating code assessable development from merit assessable development to prevent disputes and litigation about which is which in relation to any given development project.

However, the codes also need to be flexible in order not to stifle innovation.

It is not clear whether there will be notification requirements for the merit assessable component of combined code/merit assessable development.

The Green Paper can be read as only providing for strategic compatability certificates as the new planning system is taking shape. However, there are good arguments for making them a permanent feature of the system.

The implementation through legislation of the amber light approach will need to be carefully managed from a legal perspective to avoid fettering planning decisions and creating unnecessary risk/liability profiles for councils and JRPPs.

The Land and Environment Court will need to be vigilant in detecting and preventing merit challenges to planning decisions that masked as judicial review challenges being brought by people who have no opportunity to object to development proposals at the development assessment stage.

The level of independence of the the PAC, JRPPs, regional planning boards and the like to achieve a truly depoliticised decision-making system needs to be further considered. These bodies can be indirectly controlled by the State through appointments, funding and the like.

Further detail is needed on the eligibility criteria and calibre of people  for the various new expert bodies and panels, and for accreditation for code assessment.

The fourth area of reform is infrastructure planning and co-ordination. The following is proposed:

• The private sector will be able to design, fund, deliver, manage and operate infrastructure in growth precincts
• Competitive tendering will be introduced in growth areas to facilitate private sector participation in infrastructure provision
• Voluntary planning agreements (VPAs) might be phased out or significantly modernised and simplified
• If they are kept, VPAs could be linked to larger precinct developments and governed by clear minimum benchmarks
• A 20 year State Infrastructure Strategy will be prepared, supported by 5 yearly State Infrastructure Plans
• A NSW Long Term Transport Masterplan will be prepared
• 5 or 10 year Growth Infrastructure Plans for high growth areas will be prepared
• Corridor reservations will be put in place for major strategic infrastructure identified in spatial plans, especially LLUPs
• A new development contributions framework will be introduced based on key principles including cost reflectivity, cost recovery, competitiveness, housing affordability and delivery, beneficiary pays, spreading of costs, contestability and transparency
• The development contributions framework will to possibly comprise 1) a local infrastructure levy, 2) a regional open space levy, and 3) a regional infrastructure levy in high growth areas
• Levies will be apportioned evenly across growth areas
• Levies will be a percentage levy of capital investment value in infill areas
• Levies will be payable as late as practically achievable in the development process
• Decisions about whether to proceed with public priority infrastructure projects will be made at the strategic planning stage.

Industry and other stakeholders will need to be involved in ‘road testing’ specific reform proposals at the next stage of the reform process.

The proposal to defer payment of levies to as late as possible in the development process creates the problem of how to ensure that up-front infrastructure required to facilitate development in new areas can occur.

The private sector should arguably be given access to contestable infrastructure provision in all areas of the State, not just in designated growth areas.

In addition to contestable infrastructure provision, consideration should be given to allowing major developers in new areas to have access to infrastructure funds collected and held by government agencies in order to ensure the efficient and timely provision of infrastructure.

Further, consideration should be given to creating a system that enables the channelling of State and regional infrastructure contributions into priority infrastrucutre areas throughout the State or within regions.

It is notable that the new levies system does not provide for open space embellishment or the construction of community facilities. How these things will be funded needs to be made explicit at the next stage of the reform process.

The suggestion that VPAs should be eliminated or regulated is at odds with what has been seen by many as a flexible infrastructure delivery mechanism that encourages innovation. The Green Paper proposals probably reflect DoPI’s own experience with State planning agreements, where it has managed to create an unecessarily rigid, legalistic and costly VPA process in contrast to the efficient processes developed by many local councils.

Further information needs to be provided on how, at the strategic planning stage, it will be possible to properly assess and determine whether complex public priority infrastructure projects should proceed.

The fifth and final area of reform is referred to in the Green Paper as delivering a new planning system. The following is proposed:

• A new CEOs group will be established to oversee coordinated integrated strategic level planning, and coordinate implementation, delivery and monitoring of outcomes
• New regional planning boards will be established and be involved in regional and subregional planning
• New performance monitoring guidelines containing key performance indicators on the functioning of the new planning system will be included in strategic and LLUPs
• There will be a shift in planning culture towards strategy outcomes and innovation.

The obvious omission from the Green Paper is any proposal for ‘root and branch’ reform of DoPI. There is a strong argument that this is necessary to truly change the planning culture in NSW. DoPI has recently announced an internal organisational restructure, but it is unlikely to be enough to achieve cultural change in the Department. To prepare for a new era of planning, DoPI should bring in new people with new ideas and approaches to complement the significant changes.

There are good reasons to substantially reform the Land and Environment Court as well. The Court was created in conjunction with the enactment of the Environmental Planning and Assessment Act 1979 and there are good arguments that significant legislation change should lead to significant institutional change, including in relation to bodies such as courts and tribunals.   Judicial bodies such as the courts tend to be conservative institutions. The current Court is populated by judges and commissioners who are thoroughly inculcated with the planning system and approaches of the last 30 or so years. Some decisions in recent years provide good evidence of the Court’s potential as a resistor of new ideas and thoroughgoing change in the planning system.