14 Sep 2009

State planning reforms roll on - but all in the same direction?

New South Wales, Nick Thomas

The major reform package which was enacted in June 2008 is gradually being implemented. Key features which have commenced in recent months include:

  • the commencement of the first phases of the new complying development regime, which is the NSW code-based regime for streamlined assessment and approval of smaller scale developments such as new homes;
  • the establishment of five Joint Regional Planning Panels (each with three State and two council members) for regions in eastern and central NSW, whose functions include determining major development applications, including applications for some projects which previously would have required Part 3A Ministerial approval;
  • streamlined processes for making new planning instruments for rezoning and other purposes, and the removal of one tier of planning instruments to reduce the complexity of site zoning controls;
  • the removal of many concurrence functions for State government agencies, which makes the development approval process simpler and more focused; and
  • significant reductions in the level of developer contributions for State and local infrastructure.

The NSW Government has also passed legislation specifically to facilitate the delivery of projects which are funded by the Nation Building Programs.

Victoria, Sallyanne Everett

The Victorian State Government has introduced a range of planning reforms and initiatives to fast-track development projects and secure funding available for education and social housing projects under the Nation Building Programs. This has included:

  • specific planning controls to remove the need for a planning permit for educational facilities,
    where plans are certified by a qualified building surveyor or approved by the Minister for Planning (as responsible authority) where certification requirements cannot be met;
  • a simplified approvals process for social housing projects identified as priority projects and recommended for funding by the Department of Human Services (Office of Housing), with permit applications being exempt from advertising and third party right of review;
  • increased intervention by the Minister in projects identified as having the potential to deliver significant economic and employment benefits, while meeting planning policy objectives;
  • establishment of a development facilitation task force, to co-ordinate and oversee advice to the Minister on priority projects and how they may be facilitated through the planning process, including by Ministerial “call in”;
  • proposed establishment of Development Assessment Committees to make planning permit decisions in relation to “market-ready” Principal Activity Centres (however, proposed legislation was defeated in Parliament on 11 June 2009).

Victoria’s principal planning legislation, the Planning and Environment Act 1987, is undergoing major review to simplify current planning laws and strengthen the timeliness in the planning approvals process. Submissions on the review closed in May 2009 and an expert Panel has been appointed to assist with the review and provide advice on improvements to be made.

The State Government’s proposed Major Project Facilitation Legislation is also scheduled to be introduced into Parliament later this year, to facilitate development of major transport infrastructure projects.

There are also a range of other planning reforms and initiatives, including those associated with the planned expansion of the Urban Growth Boundary to assist in accommodating Melbourne’s rapidly growing population, introduction of the growth areas infrastructure contribution, and strategic impact assessment into biodiversity impacts consequential upon changing the Urban Growth Boundary.

Queensland, Karen Trainor

On 19 July 2009 the Sustainable Planning Bill was introduced into Parliament. If passed, the Bill will repeal and replace Queensland’s current core planning legislation, the Integrated Planning Act 1997 (Planning Act).

The Bill is the culmination of the IPA Reform Project which commenced in February 2006. The key objective of the Bill is to achieve a more timely and streamlined land use planning and development framework. If passed, the Bill is expected to commence in December.

While the Bill retains many features of the Planning Act, significant changes for developers include:

  • reduced timeframes within the application and implementation process – for instance:
    • the time for responding to an information request is reduced to six months unless otherwise agreed (currently 12 months); and
    • preliminary approvals will lapse after five years unless otherwise specified where the development is started but not completed;
  • a process for deemed approvals for code assessable applications – the applicant may give a “deemed approval notice” where the application is not decided within the decision-making period (but this process does not apply in certain circumstances such as applications for building developments, vegetation clearing, preliminary approvals, or for development in certain protected areas);
  • a process for the Minister to make and implement standard planning scheme provisions, which should provide more clarity and continuity for developers when addressing different local government areas; and
  • two new categories of assessment:
    • compliance assessment for simple or technical proposals (requiring a compliance permit in place of a development permit), which will speed up assessment processes for these proposals; and
    • prohibited development (the concept of prohibited development being outlined within a legislative framework is a shift back to the pre-Planning Act regime).

The jurisdiction of the Building and Development Dispute Resolution Committee (the renamed Building and Development Tribunal) is expanded under the Bill.

The Bill has significant implications for developers, assessment managers, concurrence agencies and local governments, in terms of both process and planning outcomes. However, many of the key operative provisions of the Bill (the process for structure plans and planning scheme amendments and what is assessable development) are deferred to guidelines and regulations which have not yet been published.

Australian Capital Territory, Alfonso Del Rio

The development application process in the ACT has undergone significant change in recent years, particularly since a new and improved planning system was introduced on 31 March 2008.

Development Proposals are exempt (no DA is required), assessable (DA is required) or prohibited (DA will not be considered).

Exempt development proposals are small-scale proposals such as internal fit-outs, single dwellings in new estates, car ports and small pergolas. If a Development proposal is exempt, a registered building certifier confirms exemption from DA and issues a building approval (if required).

If a Development Proposal is assessable then it will fall under one of three tracks – code, merit or impact:

  • a code track development proposal (small-scale developments) is assessed by the ACT Planning and Land Authority (ACTPLA), without being publicly notified or referred to any other agency, is assessed against the rules or criteria in the applicable Assessment Code of the Territory Plan, and cannot be refused approval if it complies with the rules or criteria;
  • a merit track development proposal (large-scale private sector developments) is assessed against the rules or criteria in the applicable Assessment Code of the Territory Plan. It is publicly notified by ACTPLA and, where appropriate, referred to other government agencies for comment. Third-party appeal rights apply only in relation to those aspects of the proposal that do not comply with the applicable rules or criteria; and
  • impact track development proposals (public infrastructure developments and clearing a significant area of native vegetation) are considered against the Territory Plan and an Environmental Impact Statement (unless exempted by the Minister) and undergo the broadest level of assessment.

The new planning regulations were made by the ACT Government to ensure social housing and education building work can begin within timeframes set by the Nation Building Programs.

As a short term measure to support industry investment, the “change of use” charge (which the ACT has instead of developer contributions) has been reduced from 75 percent to 50 percent for most development applications lodged between 1 June 2009 and 1 June 2010. As an additional incentive to redevelop closed service station sites the change of use charge for those sites has been reduced to zero.

Western Australia, Brad Wylynko

The resource boom saw the 2005 reform of the WA planning system, embodied in the Planning and Development Act 2005 (WA), struggling to keep pace with the resulting strong economic and population growth.

The current economic downswing presents WA with an unexpected opportunity to finally complete implementation of earlier reforms, and to introduce much needed additional reforms.

The suite of planning reforms now being considered in WA includes:

  • update, rationalise and simplify the State and local planning policy framework to more effectively assist in the assessment and determination of development applications;
  • extend the trial online subdivision application and approvals system to increase the number of applicants who can benefit from a more than halving of the usual statutory referral time;
  • prevent the pre-selling of more than two lots “off the plans” prior to the issue of subdivision approval to avoid the plethora of lapsed sale contracts that plagued the Perth housing market in the mid 2000s; and
  • adopt, through a review of WA’s Model Scheme Text, the national risk-based assessment model in subdivision and development application processes in order to reduce the processing time for low risk applications.

WA has also considered the lead set by a number of Eastern States in proposals to introduce several significant new concepts into the planning process, including:

  • establishing development assessment panels, consisting of independent experts and elected local government representatives, to ensure transparent and efficient decision-making for contentious or complex projects;
  • expanding ministerial call-in powers for major land use proposals or projects of State/regional significance; and
  • creating third-party rights of appeal to allow submitters to appeal decisions on development applications to the State Administrative Tribunal.

Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.