16 Apr 2013

New White Paper would make NSW planning system more strategic and community-based

The NSW Government's long-awaited White Paper - A New Planning System for NSW builds on the Green Paper on a New Planning System for NSW released last year to create what the Government hopes will be a strategic, streamlined and depoliticised planning system.

Two exposure draft bills have also been released for consultation, the Exposure Planning Bill 2013 (Planning Bill), and the Exposure Planning Administration Bill 2013. The closing date for submissions is 28 June 2013.

Our full analysis will follow shortly.

The five elements of reform

The Government states that the White Paper provides the detail around the following five fundamental reforms:

1. Delivery Culture: A new culture will promote cooperation and community participation. There will be regular and mandatory performance reporting for strategic planning at all levels.

2. Community Participation: The legislation will provide for a Community Participation Charter with clear objectives for community participation. Planning authorities will be required to prepare a Community Participation Plan to describe how the community will be actively engaged.

3. Strategic Planning: There will a shift to evidence based, whole of Government strategic planning in the development of plans, community and stakeholder engagement and decision-making.

4. Development Assessment: Development Assessment will be transformed through a performance based system where decisions are made faster and more transparent. It makes greater use of code complying development and removes layers of assessment.

5. Provision of Infrastructure: Ensuring planning and delivery for development and supporting infrastructure occur at the same time.

These elements are reflected in the substantially re-written objects of the proposed Bill compared to those currently set out in the Environmental Planning and Assessment Act 1979 (EP&A Act). One noticeable omission from the objects is the express object to "encourage ecological sustainable development", which has been the basis for numerous legal challenges to development approvals in recent years.

Community participation

All planning authorities must abide by a Community Participation Charter that will form part of the new planning legislation. This will go beyond the traditional advertising and requests for comments – people can be randomly selected to give their feedback.

Strategic focus: A hierarchy of plans

The White Paper clearly articulates how the various levels of planning will work together, although this is similar to the hierarchy that presently exists under the EP&A Act.

At the top will be NSW Planning Policies developed by the State Government. These set the State’s planning objectives and priorities.

Below them will be Regional Growth Plans, also developed by the State Government. These establish the vision and growth strategy for the region, including region wide housing, employment, environmental and conservation objectives.

Groups of councils will form Subregional Planning Boards, which will develop Subregional Delivery Plans. Along with setting visions for the subregion consistent with the objectives in the Regional Growth Plans, these will develop delivery tools, including zoning areas of subregional significance.

Local councils will develop Local Plans, which outline the vision for an area and specify zoning, development guides and infrastructure consistent with that vision.

Streamlined approvals

The White Paper proposes a raft of measures to improve the develop assessment process, including:

  • streaming assessment into five tracks: exempt, complying, code, merit and prohibited. A major goal of the new system is to ensure 80% of all development approvals will be complying development or code assessment within five years of the new planning legislation beginning;
  • greater use of experts – for example, they will assess complex applications;
  • more certainty for proponents with assessment criteria and information requirements, as they will be known upfront and will not change, and consent authorities won't be able to require any additional information over and above that which is necessary to assess the application. It will also be harder for consent authorities to stop the clock; and
  • limiting the community's rights to object to complying development.

Provision of infrastructure

According to the White Paper, "NSW will be the first Australian state or territory to introduce Growth Infrastructure Plans as an integral component of strategic planning at all levels. These Plans will be the key mechanism to integrate land use planning and infrastructure provision across subregions."

They will be tailored to each region or subregion, and focus on growth infrastructure priorities for both greenfield and infill areas and funding arrangements (including infrastructure contributions and budget funding).

A key element is the encouragement of contestable infrastructure, by requiring each Growth Infrastructure Plan to assess its practicality for that region or subregion.

Public priority infrastructure will be permitted, with subsequent assessments focused on environmental management. No separate project approval will be required after the Minister has determined that a project is public priority infrastructure.

Infrastructure contributions will be simplified and potentially lowered.

Similar concepts

There are a number of concepts in the Planning Bill which are similar to the concepts in the EP&A Act. For example:

  • State significant development continues in a similar form to that under the EP&A Act;
  • the concept of State significant infrastructure (SSI) is replaced with State infrastructure development (SID) and the provisions relating to SID are very similar to the SSI provisions in the EP&A Act; and
  • an "activity" under Part 5 of the EP&A Act is dealt with in very similar terms to the new concept of "relevant development" under Part 5 of the Planning Bill.

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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.