NSW Planning System Review White Paper and draft Planning Bills

NSW Planning System Review The process so far: Election promise (2011 election) Announcement of review and appointment of independent co-chairs (July 2011) Listening and scoping phase (Sept – Nov 2011) Independent Panel’s recommendations (June 2012) Green Paper (July 2012) White Paper & draft Planning Bill (April – June 2013) Legislation will be introduced to Parliament (Sept 2013)

Overview of key changes Move away from the environment - emphasis on economy and growth Shift to upfront strategic planning Community participation charter and community engagement plans Replace existing planning instruments More code assessment Concerns about State significant development approval process have not been addressed Too large a focus on economic growth and housing targets An over-reliance on community engagement at early strategic planning level The removal of residents’ rights to comment on 80% of Das A top-down approach The increased use of ‘expert’ panels for decision-making. Community participation charter: Enshrined in the new planning legislation Duty on planning authorities to follow charter during strategic planning and development assessment Duty on authorities to prepare and implement community participation plans based on Charter.

Key Issues Ecologically Sustainable Development has been removed from the new planning system One of the current objects of the EPA Act is to encourage ecologically sustainable development (section 5, EPA Act). Ecologically sustainable development is defined, with reference to section 6(2) of the Protection of the Environment Administration Act 1991 (POEA Act), as the implementation of the following principles:   the precautionary principle inter-generational equity conservation of biological diversity and ecological integrity improved valuation, pricing and incentive mechanisms, including the polluter pays principle. The White Paper refers to ‘sustainable development’, and recognises that sustainable development has been incorporated into planning acts in most Australian states and territories (page 16, White Paper). The Planning Bill provides that one of the objects of the Act is “economic growth and environmental and social well-being through sustainable development” (section 1.3(1)(a)). Sustainable development is achieved by the “integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development” (section 1.3(2), Planning Bill). This new, narrow definition of sustainable development is a significant step away from the established principles of ecologically sustainable development, which have underpinned environmental planning and development decisions in NSW since the late 1990’s. In particular, the Planning Bill makes no reference to the precautionary principle, a central tenet of environmental policy and case law in NSW for more than two decades. The move away from the principles of ecologically sustainable development is not consistent with other environment and planning legislation in Australia: see, for example, section 9 of the Planning and Development Act (ACT) 2007, Chapter 1 of the Sustainable Planning Act 2009 (Qld) and section 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Key Issues Community participation provisions are not mandatory New community participation charter and community engagement plans are not enforceable Basic, existing requirements including notification, right to make submissions, obligation to consider submissions are not clearly prescribed

Key Issues 80% of all development in NSW will be assessed as complying or code development, with no community consultation and no merit assessment The Government’s White Paper suggests that code assessment will be for low impact development only (page 31, White Paper). The assumption that 80% of development in NSW is low impact development has no evidentiary base. The types of development listed in the White Paper as examples of complying development and code development include industrial and commercial buildings, residential apartments, townhouses and villas, and subdivision of land (pages 126-130, White Paper). These types of development cannot be said to be genuinely low impact development. Codes are expected to deal with matters such as overshadowing, privacy, height and how the building will look from the street and public areas (page 129, White Paper). There is a real risk that there will not be a robust assessment of the potential impacts of development proposals on the environment, heritage and amenity. Some developments which may be considered ‘minor’ in a highly developed urban area may have significant impacts in environmentally sensitive areas such as waterways, lakes, coastal, forest, heath, woodlands and wetlands. Councils will not be able to refuse development that complies with the Codes (page 130, White Paper). Councils will be forced to approve development despite concerns that it, or the community, may have the development. The proposal to remove community consultation for the majority of development applications in NSW is inconsistent with commitments in the NSW 2021 State Plan to increase opportunities for people to look after their own neighbourhoods and environments (Goal 23) and restore confidence and integrity in the planning system (Goal 29). Community input on development proposals can lead to improved planning outcomes by incorporating local knowledge, identifying potential impacts and contributing to accountability. The public interest value and benefit of community consultation processes must not be abandoned simply to increase the speed of development assessment.

Prohibited Exempt Complying- 10 days turnaround (certifier) Code-assessable- 25 days turnaround (Council) Merit-based (Council or other) Only merit-based development will have community consultation and assessments of environmental and heritage impacts.

Proposed complying development

Proposed code assessable development

Key Issues All existing planning instruments will be replaced with: NSW Planning Policies Regional Growth Plans Subregional Delivery Plans Local Plans What does that mean for existing environmental and heritage protection? NSW Planning Policies (NSW planning objectives and priorities) Regional Growth Plans (vision and growth strategy for the region, inc. objectives for housing, conservation, employment etc.) Subregional Delivery Plans (vision and delivery tools for a subregion, including zoning significant areas) Local Plans, including local Codes (zoning and development guides) Who makes plans? At State and Regional level: prepared by NSW Govt; made by the Minister for Planning and Infrastructure At subregional level: prepared by Subregional Planning Boards, made by the Minister At local level: prepared by Local Council; made by the Minister All Local Plans will have to be ‘certified’.

Key Issues Important environmental protection zones will be removed: E1 (National Parks and Nature Reserves) and E2 (Nature Conservation) will joined into one environment zone E3 (Environmental Management) will be moved into a general Rural zone E4 (Environmental Living zone) will be moved into a general Residential zone The White Paper proposes to reduce the number of zones available for land use planning, including removing important environmental protection zones (page 95, White Paper). Environment protection zones, as part of existing Local Environment Plans, have provided fundamental protection for our natural areas in NSW for nearly 30 years. Identifying and managing environmental values through land use planning is vital for the proper conservation and management of biodiversity and natural resources. It is at this spatial level that there can be a robust assessment of environmental values, and identification and protection of areas of high conservation value, including endangered ecological communities, critical habitat and wildlife corridors.

Key Issues The Minister will have the power to make, repeal and amend strategic plans and planning controls The Minister has significant discretion to make, amend or repeal strategic planning instruments and local plans, and in some instances, can determine the requirements for community participation, or that no community participation is required (sections 3.9, 3.14, 3.21(2)(c), Planning Bill).

Key Issues Developers will have new review rights for rezoning applications And will be able to apply for strategic compatibility certificates The Government will introduce strategic compatibility certificates that will allow developers to apply to the Director General for a certificate certifying that the carrying out of specified development on specified land is permissible with development consent, despite any prohibition for the carrying out of the development under the planning control provisions of the local plan (Division 4.7, Planning Bill). This proposal will have the effect of allowing development to proceed before key strategic planning processes (in particular, the preparation of sub-regional plans and local land use plans) have been completed, and will centralise power in the Director-General for Planning. Developers will be able initiate proposals for the rezoning of land. There is significant community concern over proponent initiated spot rezoning proposals and whether there is any public benefit associated with them. Spot rezoning has the potential to undermine strategic planning processes. If strategic planning is done properly then there should be little need for rezoning to take place between regular reviews of local environment plans. Further, creating review rights for proponents in circumstances where council determines not to proceed with a rezoning proposal adds another layer to an already complicated process and has little public benefit.

Key Issues Concerns about State significant development approval process have not been addressed: Exposure Bill overrides important concurrence and approvals role of expertise agencies Third party appeal rights not available following PAC public hearing Broad, discretionary merits assessment Public interest test has been qualified (“in particular, whether any public benefit outweighs any adverse impact of the development”)

Key Issues Third Party Merits Appeal Rights and Judicial Review Rights will be available – in restricted circumstances (clause 10.12 of the Exposure Bill) There are important benefits from third party appeal rights and public interest litigation, including participative democracy, executive accountability, institutional integrity, improved decision making and rational development of the law. The open standing provision in the EPA Act provides public confidence that laws will be adhered to and are able to be enforced, and ensures that limited resources are directed to the resolution of substantive issues. We believe the new planning system will substantially weaken third party appeal rights and the open standing provision: The White Paper says applicant and merit appeal rights will remain unchanged in the new development assessment system (page 143, White Paper), and the right for any person to go the Land and Environment Court to remedy a breach of the Act (the open standing provision) will be continued (p.147, White Paper).   However, while third party appeal rights and an open standing provision are included in the Planning Bill (see sections 9.8 and 10.9 respectively), section 10.12 of the Planning Bill substantially limits these rights by seeking to exclude third party legal proceedings with respect to (a) the making or amending of local plans and strategic plans; (b) approval of State significant development and State significant infrastructure; and (c) implementation of the Public Participation Charter. Further, the Planning Bill continues to restrict appeal rights against decisions that have been made after a public hearing by the Planning Assessment Commission (section 9.6(3), Planning Bill). Such a restriction seeks to override judicial oversight of planning decisions, and reduces the transparency and accountability of decisions of the Planning Assessment Commission.

Summary The proposed changes to the NSW Planning System represent the most significant backward step in community participation and environmental and cultural heritage protection in more than a generation.

Proposed amendment to the Mining SEPP 1) Economic considerations made paramount The proposed changes to the Mining SEPP would require the consent authority to make the significance of the resource the consent authority’s principal consideration

Proposed amendment to the Mining SEPP 2) Non-binding development standards put communities and resources at risk If development complies with standard – consent authority cannot refuse If development does not comply – consent authority still has discretion to approve

Proposed amendment to the Mining SEPP 3) Proposal further undermines community confidence in the NSW planning system Pre-empts strategic planning process Does not represent best practice community engagement Puts economy and profit before communities and environment

Key messages for your meetings Outline your keys concerns (set an agenda or list) Emphasise your key message: e.g. Go back to the drawing board Table any document that you want to leave with your MP

Key messages for your meetings Ask your MP to make representations to Minister Hazzard on your behalf Ask your MP to tell you when they have done this If your MP is supportive – suggest that they ask a question in Parliament

What’s next Complete your Meeting Report Form Pick up coreflutes Send out your media release Plan to take further action: Online petition, Hazzard tape, local media, stalls etc. Do you need to follow up with your MP on anything? Keep in touch with BPN and NCC: www.nccnsw.org.au www.betterplanningnetwork.org.au