The land rezoning process in NSW would be simplified, and proponents would have merit appeal rights if their rezoning proposal is refused or not determined in time, if changes which the NSW Government is proposing in a new discussion paper are implemented.
Need for reform
As part of a broader reform of the NSW planning system, the NSW Government has released a discussion paper proposing major changes to the rezoning process in NSW.
The permissibility of urban development, and the environmental assessment and approval regimes which apply to urban development on a particular piece of land, are governed principally by the environmental planning instruments (EPIs) which apply to the land. The relevant EPIs (usually a local environmental plan (LEP) and possibly also one or more State environmental planning policies (SEPPs)) will identify the zoning of the land, the permissible and prohibited land uses within that zone and the key controls which apply to development on the land, such as height, density and minimum lot size.
The process of amending an EPI currently involves several complicated steps which generally take about two years. Planning proposals which involve an LEP amendment often go twice to a council meeting (before 'gateway' and before 'finalisation'), and twice to the NSW Government (at 'gateway' and 'finalisation'). This can result in a duplication of assessment and delays.
Proponents currently have limited control over the process and have limited opportunity to address potential delays or rejections of proposals that may have merit. While there is some scope for review of adverse gateway decisions, this is done by another administrative body such as a regional planning panel, it is non-statutory, and there is no right of appeal.
As the discussion paper acknowledges, "the rezoning process has become unwieldy, resulting in weaker planning outcomes, unnecessary delays and higher costs".
What are the key changes?
To address these issues, the Government's discussion paper proposes the following key changes to the land rezoning regime:
- introduction of a pre-lodgement scoping stage
Before submitting the rezoning application, proponents would prepare a scoping report and attend a scoping meeting with the rezoning authority. The rezoning authority would then issue site specific study requirements (SSSRs) together with written feedback on the rezoning proposal's consistency with strategic planning documents. The SSSRs would identify the technical reports and other material which are needed to accompany the rezoning application.
- removal of the gateway determination stage
The gateway determination stage would be removed and replaced with the pre-lodgement scoping stage.
- public exhibition of the rezoning application to occur shortly after lodgement
Once a rezoning application has been lodged, the rezoning authority would have 7 days to confirm whether the application satisfies the SSSRs and, if not, to reject the rezoning proposal.
If it complies, the rezoning application would be placed on public exhibition.
- categorisation of proposals and related time frames
Each rezoning proposal would be categorised according to the extent of the proposed change, its consistency with applicable strategic plans and its complexity. There will be four categories (Basic, Standard, Complex and Principal LEP), each with associated time frames.
- introduction of a merit appeal right for proponents
A proponent would have the right to appeal the rezoning authority's refusal or "deemed refusal" (ie. no decision after a prescribed period of time). While the discussion paper suggests the appeal would be similar to what currently exists for a development application, it looks at two "appeal" options - the NSW Land and Environment Court (which is the forum for development application appeals) and the Independent Planning Commission (which would be a more administrative style "appeal").
- introduction of a "planning guarantee" for application fees
A proponent would have the right to a refund of its application fees for a rezoning proposal where a determination of its application is not made within the statutory assessment period (ie. the "deemed refusal" period).
This idea is modelled on the UK planning system. A rezoning authority would still be required to progress the assessment of a rezoning application, even if it has refunded the application fees.
If introduced, these reforms will simplify and expedite the rezoning process for proponents in many situations, and will give proponents greater confidence in the opportunity to put their best case forward, including via merit appeals if appropriate.
However, the Government is also expecting to see fewer rezoning applications in future, as it strengthens the statutory role of strategic planning and integrates key planning principles into EPIs as part of that process.
It is also expecting to see an overall uplift in the quality of rezoning proposals and the clarity and consistency of assessments and outcomes for those proposals. To assist in achieving these goals, the Department of Planning, Industry and Environment has also released a new Local Environmental Plan Making Guideline.
Submissions on the discussion paper, which can be accessed here, close on 28 February 2022.