In the mood for planning law reform - but how far will it go?

By Nick Thomas.

Key Points:
There’s a general recognition that planning laws across Australia need reform. Several aspects of the key NSW proposals currently before NSW Parliament have also been made or proposed in jurisdictions across Australia, but harmonisation is still a long way off.

As the NSW Minister for Planning, the Hon Frank Sartor, put it - "there is a national mood for reform".[1] Recent investigations by State and Federal bodies, including the Council of Australian Governments, have identified a need to cut regulatory red tape to promote economic activity, including in development approvals and planning.

Other States are moving ahead with their own reforms, but currently there is no national uniformity in the reform process.

The NSW Government is embarking on a new wave of planning reforms in the form of the Environmental Planning and Assessment Amendment Act 2008 ("Amendment Act"), which - when it commences - will affect almost every aspect of development control under the Environmental Planning and Assessment Act 1979 ("Planning Act").

Some of the reforms are quite cutting-edge, while aspects of others have already been adopted or proposed in other States.

In this article we’ll focus on the NSW changes, and round up what’s happening in other jurisdictions (see our next article 'Reform across Australia').

The NSW Government claims the reforms it has put to Parliament will streamline plan-making and development control decision-making processes, and promote transparency and accountability in development decision-making. If implemented properly, the Amendment Act may go a long way to achieving these goals.

Making planning instruments

The foundation of the NSW planning system is its planning instruments, which regulate primarily what can be done on certain land and what must be addressed when considering development proposals. Currently, there are three levels of instruments - State environmental planning policies, regional environmental plans ("REPs") and local environmental plans ("LEPs").

The Amendment Act will eliminate REPs and will streamline the process for making LEPs. The Minister will be given significant discretion to direct the path of a proposal for an LEP at an early stage, known as the "gateway determination". Public consultation processes could be tailored to particular types of LEPs, and eliminated altogether in some cases.

The Amendment Act enables the Minister to set time-frames for the completion of various stages in the making of an LEP, which will provide considerably more certainty for all stakeholders.

Development assessment and approval

Currently, almost all applications for development approval are determined by local councils or the Minister for Planning. The Amendment Act would establish three new approval authorities - the Planning Assessment Commission ("PAC"), joint regional planning panels and individual planning arbitrators.

The PAC’s main function would be to determine most major project applications (under Part 3A of the Planning Act) under delegation from the Minister. It would also act as an advisory body for the Minister.

Regional Panels would act primarily as decision-makers for regionally significant development applications.

Planning arbitrators would determine appeals from local councils for smaller-scale development proposals.

Councils will also be encouraged or even required to establish advisory panels to assist them in determining certain local development applications.

Key streamlining initiatives in the Amendment Act (and proposed for regulations and policy instruments, some of which are yet to be drafted) include:

• promoting the use of "complying development" as a form of assessment and approval - this will allow greater use of certification-style approvals for individual residential developments and smaller-scale commercial/industrial development;
• tailoring prescribed decision-making time-frames to the nature and scale of development proposals (so as to make the triggers for appeal rights based on a "deemed refusal" more realistic); and
• removing "stop-the-clock" powers for local councils, eliminating most of the requirements for referral to, or concurrence by, State Government agencies, and providing for "deemed concurrence" in some situations.

It seems likely that legal (and possibly other) representation will be excluded from decision-making by the new approval authorities. In response to concerns about forum shopping, however, the Government has dropped its proposal to allow alternative avenues of appeal to these bodies or the NSW Land and Environment Court, maintaining instead the role of the Court as an appeal body in most cases.

Development contributions

The Amendment Act will apply more rigour to the development contributions regime, particularly for local councils, through measures such as:

• a set of threshold criteria for many key decisions regarding the setting, levying and spending of contributions (based on reasonableness, proportionality and affordability);
• additional restrictions on the purposes for which local contributions may be levied;
• the re-making, under Ministerial supervision, of all local contribution plans by 31 March 2010; and
• requiring the Minister to obtain Treasurer (or Treasury) approval for State infrastructure contributions.

Certification and enforcement

The Amendment Act proposes several reforms to promote transparency in private certification of development under Part 4A of the Planning Act (at the pre-construction, subdivision and occupation stages), and to promote enforcement of planning laws, such as:

• additional design and other prerequisites for the issue of a Part 4A certificate;
• requiring a private certifier to issue directions to a developer if the certifier becomes aware of non-compliance with the relevant development approval;
• additional investigatory and on-the-spot enforcement powers for local councils; and
• power for a consent authority to require construction "compliance bonds" for all conditions of development consent.

So what’s next?

The Government is progressively releasing draft regulations, policies and codes to give effect to the Amendment Act, and those are attracting a lot of stakeholder interest.

While it seems the States are paying closer attention to what works and doesn’t work in planning laws in other States, there is still substantial variability in laws across Australian jurisdictions, and it’s unclear what the future of shape of planning laws nationally will be. It seems, however, there’s a healthy appetite for planning reform across Australia, so watch out for the next course.

[1] Second Reading Speech for the Environmental Planning and Assessment Amendment Bill 2008, NSW Legislative Assembly, 15 May 2008.

For further information, please contact Nick Thomas.