Posted on April 9, 2013 by Stuart Simington

The new planning system for NSW and draft Metropolitan Strategy for Sydney to 2031- Some observations

We previously reported on the NSW Government’s Green Paper, A New System for Planning for NSW (Green Paper) (here and here).

The Draft Metropolitan Strategy for Sydney to 2031 (Draft Strategy) has now been placed on public exhibition to 31 May 2013. The Draft Strategy is proposed to replace the Metropolitan Plan for Sydney 2036 (Metro36)  in conjunction with the new planning system.

And so while matters may well change once the detail of the Government’s White Paper becomes available, it seems an appropriate time to reflect on what we know about:

• how the Draft Strategy would be intended to operate under the new planning system; and
• how this differs from the operation of Metro36 under the current system.

For the reasons discussed, it seems that the Draft Strategy will have a more significant impact on planning outcomes than previous strategies under the current planning system.

Metro36 and the current planning framework

Under the current planning system, planning proposals are generally required by Direction 7.1  made under s117 of the Environmental Planning and Assessment Act 1979 (EPA Act) to be consistent with Metro36.

Nevertheless, there is no positive obligation to  amend existing planning controls to bring these into line with Metro36 and particular proposals can be inconsistent, particularly if the Minister agrees.

So for the most part, unless there is a specific desire for action, Metro 36 need not be implemented in planning controls at all.

In relation to development assessment, Metro36 also does not prevail over enforceable development controls.

At best, it may be a mater for consideration as an element of the assessment of the public interest under s79C(1) of the EPA Act: see for example Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277.

For the most part, however, the Courts have actually made it clear that Metro36 is to be regarded as policy for the development of new planning controls rather than persuasive in its own right. For example, in Tiffany Developments v Minister for Planning and infrastructure [2012] NSWLEC 1000. Commissioner Morris noted at [36]:

The guiding strategic planning documents, Metro2036 and DSNERSS, are agreed by the parties to be tools that guide policy development and inform state and local planning policies. …For this reason, it is appropriate to expect that any change to the zoning would be consistent with the views and directions contained within those documents. No further conclusions on the strategic direction can be drawn.

Similarly, in Pittwater Council v Minister for Planning [2011] NSWLEC 162, Pain J made similar observations while still holding that the document was not an entirely irrelevant consideration in relation to the Part 3A assessment process:

[21] …Strategic Direction I is called Delivering the Plan. The plan is intended to be implemented by state involvement in implementation of spatial plans via local government through subregional strategies, LEPs, directions under s 117 of the EPA Act, inter alia. Objective I3 refers to the alignment of subregional planning with the strategic directions of the plan. Objective I4 identifies LEPs as the primary land use planning tool for delivering mandatory development controls. The Minister will issue a new s 117 direction under the EPA Act to ensure new LEPs respond to the plan.

[101]…While it is not accurate to describe the figures in the Metro Strategy as controls because the intent and nature of that document is to provide broad level strategic advice which will be implemented at a site specific level through LEPs responding to s 117 directions issued to the Minister, it is not an irrelevant document to consider in the Pt 3A framework.

The Draft Strategy under the new planning system

Under the Green Paper, the Draft Strategy is referred to as a Metropolitan Growth Plan.

Although it is said to be a non-statutory document, it will have a place at the apex of the policy/planning planning strategies that apply to land. All of the plans that fall below a Metropolitan Growth plan will fall out of the Growth Plan and need to be consistent with it. The Green Paper indicates that Metropolitan/Regional Growth Plans will identify development capacities, scenarios and targets and be supported by market and feasibility data.  They will also contain 10 year growth targets for sub-regions.

From Metropolitan/Regional Growth Plans, sub-regional delivery plans are prepared setting out development parameters and criteria to implement them. These plans will also rely on sectoral strategies and growth infrastructure plans.

Local land use plans (LLUPs) will eventually be developed. Again these need to be consistent with the higher order  plans.

It seems that the development of the above matters will take some time.  Prior to the availability of sub-regional plans, strategic compatibility certificates can be issued by the Director-General  (or on review by the JRPP) to enable ‘conforming’ development (consistent with a Metropolitan or Regional Planning Strategy) to proceed. In other words, in the early phases of implementation of the new planning system, the Draft Strategy will, in fact, be akin to a planning control.

Conclusions

Although much may change when the White Paper is released, I make the following observations.

Firstly, under the Green Paper, the Draft Strategy will eventually have one similarity with Metro36 under the current system. It will be the basis for future planning controls that sit under it in the planning hierarchy. Those plans/controls will need to be consistent with it in a similar way as currently applies under Metro36 in accordance with the relevant s117 direction.

Nevertheless, given the delays that are likely to be experienced in the finalisation of sub-regional plans, it is quite likely that the document will figure significantly in planning approvals during the transitional phase vis a vis the issuing of strategic compatibility certificates for new development. In that regard, although a Metropolitan Growth Plan is said not to be a ‘statutory’ plan , it seems that it will  have such an operation because it will make development that is consistent with it permissible at the discretion of the Director-General (or JRPP).

Finally, given that under the new planning system there will be a positive obligation for transition from the old to the new hierarchy of strategies and plans, there will also be a statutory impetus to implement the Draft Strategy in a way that has never really applied to previous strategies such as Metro36.