Item 10.2 - Attachment 2

Submission to the Issue Paper for the NSW Planning System Review




Submission to the Issues Paper for the NSW Planning System Review

Parramatta City Council


1.         objectives and philosophy of the new planning system


Legislative reform is only one of the elements of the wider planning reform exercise that should be carried out in NSW. In order to reform the wider ‘planning system’ the following reforms are needed:


§ The original Environmental Planning and Assessment Act 1979 (EP&A Act) aimed to balance the land use planning system and to take into consideration environmental, social and economic impacts. The new legislative framework should aim to address the original framework including greater responsibility to local government authorities over land use planning decisions, and creating a balanced system that is flexible enough to respond to changes as they arise, while considering long term strategic planning and balancing between the environment, community interests and economy interests.

§ The philosophy of the new planning system should essentially be about what do we want to achieve in planning for NSW? The planning system should be designed to achieve outcomes. It should therefore have a stronger emphasis on long term strategic planning to ensure a holistic and proactive response is provided for future development. This strategic planning, particularly at a local and regional (beyond council boundaries) scale is conducted (and are connected) ahead of development proposals and decisions at a site level must be linked back to strategic objectives.

§ Strategic land use plans should be statutory instruments with greater weight to provide certainty for the community as to the future development in their area. They should include and respond to the future needs of regional significant precincts, such as Westmead. The strategic land use plans under the new Planning Act need to be consistent and connected to Community Plans under the Local Government Act.

§ The planning system should clarify the respective responsibilities of the three spheres of government. Recognition should be given to Local Government having the primary role in planning for the local area and these changes should be incorporated into a review of the Local Government Act.

§ Infrastructure plans need to be integrated into the planning system and supported with funding. The system should enshrine a new whole-of-government approach to the provision and planning of infrastructure which is a fundamental component to the acceptability of increased densities in both residential and commercial development. Transport infrastructure is a critical example.

§ There needs to be a hierarchy of plans (i.e. state plan, regional plan and local plans) which reflect the aims/objectives of the new Planning Act. All of the plans should have statutory force, including DCPs. 

§ The legislation needs to avoid weighting objectives/aims as weighting would give the legislation a defined bias. All aims are important and should each be considered as part of an assessment process.

§ The aims/objectives of plans at every level should be consistent, and the outcomes for each plan should be measurable and subject to regular review.

§ The objectives of the new Planning Act should:

-     Be meaningful and outcomes focused – not just ‘motherhood’ statements.

-     Promote the sustainable (environmentally, socially (including affordable housing), economically) use and development of land.

-     Promote an efficient and effective planning system.

-     Promote population health and wellbeing.

-     Promote well-designed and efficient cities, towns and neighbourhoods.

-     Provide relevant, meaningful and measurable objectives to guide the provisions of the Act.

-     Provide a means by which responsibilities under the Act will be monitored and measured – for councils this could be tied with the mandatory ‘Integrated Planning and Reporting’ under the Local Government Act. 

§ The new system (processes) and legislation must be clear, straightforward and in plain English.

§ The new system should allow for decisions to be made within the local context, not the creation of standardised ‘one size fits all’ approach.

§ Need to consolidate land use planning decisions in one legislative structure.

§ There should be separate Regulations associated with the Planning Act to regulate the following functions of the Act:

-     Plan making

-     Development proposal assessment (including review processes)

-     Infrastructure and development contributions

-     Building and structural certification

-     Enforcement

§ The Planning Act should be reviewed at least once every 5 years.

§ There needs to be ‘effective’ and ‘inclusive’ community consultation in strategic planning policy processes to reduce its emphasis at the development application stage.  

§ Comprehensive strategic planning policies should be included in the development of an electronic database which contains all property and planning controls that apply to each parcel of land in NSW. This would provide the platform for ‘e-planning’ applications throughout the state - affectations on the development potential of each site should be identified at the plan making stage for parcels of land. If strategic planning is comprehensive then significant issues should not present themselves at the development proposal assessment stage. 

§ There should be a complete review of the governance structures that affect planning functions in NSW. The governance structure for planning in Western Australia is one alternate governance structure that could be further explored. In the Western Australian model a Planning Commission (with statutory authority) has been established and has responsibility for urban, regional and rural land use planning and land development matters. The WAPC responds to the strategic direction of the government and is responsible for the strategic planning of the state. The WAPC comprises an independent chairperson, heads of various government agencies, local government representatives and representatives of industry and other stakeholder interest groups. There are also a number of other regional committees which makes decisions on behalf of the WAPC. The WAPC has responsibility for decision making (both strategic plan making and development proposals). This approach minimises lobbying and political bias within the system in both strategic plan making and development proposal decision making.


2.         Plan Making

§ The legislative structure needs to be simplified to streamline plan making and ensure the timely delivery of major developments and infrastructure. The number of plans and polices required to be considered when making new LEPs is overly complex - need to consider SEPPs, S117 directions, Metropolitan Plan, Sub-regional plan, local strategic plans etc. This is unnecessarily repetitive and time consuming and needs to be streamlined.

§ Many of the provisions of the SEPPs can be incorporated into LEPs to rationalise the number of SEPPs thus simplifying the number of plans applicable to any one property. There should be one (approval) plan per area, being the LEP which incorporates all local, regional and state planning rules.

§ State infrastructure plans are not supported by State Government budgets to guarantee delivery, but LEPs must have regard to integration of land use and transport/infrastructure.

§ There is a need to consider many strategic planning issues at a regional scale, for example, employment/industrial land supply and demand. Regional planning is not dealt with well at present (sub-regional plans still draft) and requires improved monitoring and implementation.

§ Consultation/community participation in the plan making and development process - time frames for processes needs to accommodate this process. A review is required in participation models and the use of social media.

§ The concept of community participation as opposed to merely consulting the community once a plan is prepared sounds very positive in theory.  However, in practice, there would be many issues with this approach.  The terms of reference would need to be very clear for the community to know exactly why their views are being sought and what will be done with the information.  It may also be difficult to illicit views from the broader community without there being a draft plan to reflect upon.   Having a draft plan, at least gives the community a better idea of the possible end result and how the issue will affect them.

§ Standard Instrument limitations - applied too rigidly, complexity of practice notes, hierarchy of land use terms and relying on SEPPs for the permissibility of land uses have made the land use tables beyond the comprehension of the average person. For example, at first glance secondary dwellings appear to be prohibited in the residential zones in a Standard LEP however are permissible under the Affordable Rental Housing SEPP. The role of Parliamentary Counsel has not diminished despite this being one of the aims of ‘standardising’ and speeding up the process. The role of Parliamentary Counsel in the plan making process should be significantly diminished.

§ Standard LEP Templates must be flexible, as one size DOES NOT fit all. Need to be able to include more place-based controls into LEPs to reflect local differences, for example requirements for a certain amount of affordable housing in new developments in a specific area.

§ Vertical zoning should be permitted in the Standard LEP template to deal with mixed use developments.

§ Council currently considers there to be a lack of guidance on the type of amendments to a draft LEP that require re-exhibition. Criteria should be developed to provide better guidance and to ensure consistency and transparency in the plan making process.

§ The current Gateway process is an improvement to the previous plan making process. However, there is concern that consultation with public authorities occurs too late in the piece. Council is increasingly taking the initiative to consult with key public authorities to ensure a well rounded assessment is made prior to Council’s adoption of the Planning Proposal and request for a Gateway Determination by the Department of Planning and Infrastructure.

§ Planning Proposals whether prepared by the landowner or Council must be adopted by Council prior to proceeding to the ‘gateway’.

§ An applicant for a rezoning should have to demonstrate a positive public benefit beyond the private benefits. Councils would benefit from legislative/regulatory support to secure public benefits in connection with any Planning Proposal.

§ Council decisions concerning the zoning of a property are grounded on sound strategic plans and studies and should NOT be subject to a right of review or appeal, nor should there be a right for a landholder to seek compensation. This is a Council policy matter.

§ Consideration should be given to delegating plan preparation and making to local councils without referring to the Department and Minister for Planning and Infrastructure.

§ A review is required in the utilisation of newspapers in publishing (coming into effect) for new DCPs and S94/A plans or amendments to DCPs and S94/A plans. Council web sites are now popular avenues to access information. A greater emphasis on technology, ‘e planning’ applications should be utilised in the plan making process.

§ It is crucial that all flood related practice notes, circulars, s117 directions manuals, plans and policies are consistent and streamlined.



§ The key to a successful development proposal assessment system lies in well formulated strategic plans and clear and concise regulatory documents. All processes and procedures associated with the assessment of development proposals should be contained in one Regulation.

§ Specific information on property and planning controls, assessment criteria, consent authority, development proposal assessment process and public participation requirements for all development on any parcel of land should be contained in one document and on an electronic database.

§ ‘e planning’ applications need to be developed across the state and would include ‘e-lodgement’ and ‘e-assessment’ modules (both for ‘complying’ and ‘merit assessment’ streams).

§ There should be a ‘standard template’ for development proposal lodgement and assessment across NSW (or Sydney metro and regional areas) and would include matters such as:

-     Application form

-     DA lodgement requirements

-     Public consultation documents (notices in newspapers, letters etc)

-     Assessment templates

-     Conditions of consent


Pre-application consultation


§ For all development proposals that require consent (i.e. not low risk applications) there should be formal consultation with the consent authority and state agencies prior to lodgement of applications to enable proponents to obtain ‘requirements for lodgement’. (A model similar to the Director General Requirements for Designated Developments and State Significant projects could be used and timeframes for delivery of advice would be needed to be contained in the Regulations).

§ ‘Adequacy to lodge’ certification could be provided by (PIA) certified practicing planners and would be needed for lodgement of applications to consent authority.




§ There should not be an absolute right to develop land for a purpose permitted in the zone, as all possible risks, such as potential environmental impacts or departures from strategic policy settings need to be addressed. There should not be an automatic approval of a proposal if all development standards and built form controls are satisfied. Controls are targets, not entitlements. Applicants can seek to achieve controls (such as a maximum height limit) but must also achieve other certain social, environmental and urban design excellence and therefore be subject to merit assessment.

§ The extent of required development proposal assessment should be commensurate with the risks associated with the development (i.e. minor development should be code assessable) together with the information required. For example, in most areas a Statement of Environmental Effects for a dwelling house should not be necessary.

§ Assessment criteria, procedural requirements and public involvement in decision making should be more rigorous as the risks increase. If public participation is improved at the ‘plan making’ stage there should be less public involvement in the development proposal assessment stage for low risk proposals.

§ The development proposal assessment system should allow some flexibility to accommodate good ideas that were not envisaged at the strategic planning stage, or improvements to the land subject to appropriate checks and balances. For instances, should a development significantly improve the current environmental situation then the proponent should be given planning benefits to recognise this improvement.

§ The planning system should ensure that the impact of development/s that is perceived to be remote from but directly affecting a community or other land is taken into account in the assessment process. An example of this is a development’s impact on flood behaviour.

§ For certain classes of development and as part of the assessment process, there should be a mandatory requirement in a new planning system for full carbon accounting to be considered. Yearly estimates of power and water usage of a new development, under typical conditions could be compared with average amounts in the geographical area to ensure the new development is not unreasonably in exceedance of the average.

§ There should be statutory requirements relating to urban water capture and its efficient use and reuse.

§ The determination of development proposals located entirely within one local government area that have a significant planning impact on an adjacent local government area needs to be addressed. Examples include potential impacts to flood behaviour and biodiversity linkages.

§ A planning mechanism is required to ensure careful consideration is given to all proposed development subject to possible inundation due to sea level rise caused by climate change.

§ Reasons for all decisions (both approval and refusal) should be given.

§ The ‘merit and quantitative’ assessment criteria for applications to modify a development consent should be the same as those considered in the original proposal assessment.

§ Realistic timeframes for the assessment of development proposals should be outlined in the Regulations. The timeframes should reflect the extent of public consultation and state agency concurrence/consultation required, and whether ‘adequacy to lodge’ certification has been issued. 

§ There is some merit in mandating the ‘amber light’ approach (a period to resolve problems with a proposal) as mentioned in the discussion paper, however, if this approach is adopted it needs to be reflected in the ‘regulated timeframes’ for decision making.

§ The general test in deciding whether to approve a development is whether or not the impacts are acceptable. These impacts may include, discharge into waterways and impacts on native fauna. There is merit in applying a test for these types of issues being whether the development can ‘improve or maintain’ the position that exists before the development is carried out.


Self approvals under SEPPs


§ Government agencies self-approving their own developments under relevant SEPPs undermine the integrity of the development assessment system and should be discouraged.





Development proposal decision review


§ Third party ‘merit’ appeals should be permitted for ‘high risk’ proposals where a significant variation to a development standard has been permitted. Existing third party judicial reviews should be carried across in any new Planning Act.

§ Reviews of development proposal decisions by a proponent should commence within 2 months of the decision being made and the review should be made by an arbitration review panel and not in a Court.


Conditions on development

·    There should be a range of standard conditions of consent incorporated in development approvals. This would allow uniformity in any variation to achieve desired outcomes within a local area.

·    Consent authorities should not require public positive covenants as part of development approvals if the matter could be dealt with by a condition of consent.

·    The new planning legislation system should permit a council to impose a condition that requires payment of charges applicable under the Local Government Act, in particular licensing and registration.


Making changes to an approved development

·    There should be no limit to the number (and size of changes) of modification applications permitted to be made during the course of the development, including to work that has been conducted until the Occupation Certificate is issued.


4.         EXEMPT & Complying Development

·    There should be an expansion of exempt and complying development proposals for low risk development proposals, for example any residential ancillary structure not used as a separate domicile should be exempt from approval that complies with specific criteria.

·    Councils should be allowed local expansions to any list of exempt and complying development. State lists of exempt and complying development should be minimum requirements with the ability for each council to increase criteria based on the needs of the local community, which differs between councils.

·    Properties with existing nonconforming uses should have access to exempt and complying development processes.

·    Objections to complying with a development standard should remain to ensure probity and allow uniformity in any variation to achieve desired outcomes within a local area.

·    Currently the conditions imposed in Complying Development Certificates are minimal and do not fully cover the spectrum of development types and stages such as pools, dwellings and mandatory inspections. It appears that councils and private certifiers are either adding the required conditions or including as advisory notes, which is not clear to the applicant or regulatory officers. A suite of standard conditions applicable to each type of development is required.

·    There are limited private certifiers that are across all food standards. It is suggested that prior to a Complying Development Certificate being issued for a food premises by a private certifier that a design be provided to the relevant consent authority for assessment to ensure the food premises meets legislation. Currently this process is fragmented and as the majority of private certifiers are not fully aware of the food standards, premises fit outs are often requested by Council prior to the Occupation Certificate being issued. It is difficult and costly to resolve any issues given this inspection is at the completion of the works prior to occupation.

·    Complying Development Certificate fees should be regulated and should not be greater than the development itself to construct.


5.         Building Certification


·    There should be a single application to the council to obtain permission to use an unauthorised structure. An Orders Building application and Section 96 application are being used for unauthorised works. A single application type is requested that enables the development to be assessed on its merits, allowing to be conditioned appropriately and to undertake further works to ensure the development seeks conformity with development standards and provides a level of amenity to neighbours. The current applications do not allow conditions to be added to a Building Certificate and are unable to be determined until such time the works required has been completed. Once a Building Certificate has been issued for unauthorised works the 7 year timeframe under the Regulation becomes redundant because the statute of limitations for prosecution has been exceeded.

·    To ensure that certifiers are making decisions that are transparent, guidelines are required to stipulate that the determinations of a Construction Certificate or Occupation Certificate are in accordance with the consent.

·    It is suggested that the Building Professionals Board consider establishing an Independent Review Panel to make decisions and provide advice on what constitutes generally the same development if a certifier needed assistance to eliminate complaints being lodged and investigated. This may mitigate any concerns before issuing a Part 4a (Certification) or the works commencing.

·    To make private certifiers more accountable it is suggested that the role of the private certifier be similar to the role of the consent authority with respect to enforcing the consent. The private certifier should be required to monitor the site during the phases of the development, in particular the commencement of construction and the progress of works in accordance with the consent.

·    Private certifiers should have their role reformed. All private certifiers and planners should be qualified to carry out certification roles, particular in issuing Complying Development Certificates, and rely on certificates from qualified persons during the assessment of Part 4a (Certification).

·    Certifiers should not be required to provide a copy of the construction plans that they have certified (as being generally consistent with the development approval) to the council to enable the council to compare the two sets of plans. This comparison is completed with the Construction Certificate assessment in accordance with legislative requirements. The Independent Review Panel should provide assistance to certifiers.

·    There should not be a requirement for rectification works to remove unacceptably impacting non-compliances. The matter of the works needs to be assessed in the first instance and does not warrant immediate removal.

·    Neighbours should not have statutory compensation rights against a certifier who approves unauthorised works that have a material adverse impact on a neighbouring property.

·    Construction plans should be required to be completely the same as the development approval and not permitted to be varied by a private certifier for construction purposes, unless the Independent Review Panel determines it is acceptable.

·    Interim Occupation Certificates should not have a maximum time specified. However, there should be a legislative process defining the requirements if an Interim Occupation Certificate is issued, including that is it to be accompanied with a Notice of Intention. This will ensure the certifier or owner can address all issues in a timely manner. It must be the certifier’s responsibility to follow up Interim Occupation Certificates.

·    The certifier should ensure the consent is complied with in its entirety not just the conditions relative to the issuing of an Occupation Certificate.

·    The certifier issuing a Final Occupation Certificate should be required to certify that the completed development has been carried out in accordance with the development consent, not just the conditions in an Occupation Certificate.

·    Plans must be lodged to council electronically.


6.         Enforcement and Compliance

·    The current penalties are considered reasonable to the nominated offences and should not be increased.

·    Orders should be incorporated with an administration fee which is prescribed and not appealable similar to the Protection of the Environment Operations Act 1997.The compliance cost provision, whilst is beneficial, is open for challenge and is difficult to impose officer hourly rates.

·    Certifiers closely monitoring the site will reduce the need for the consent authority to manage the part of the consent which the consent authority relies on the certifier to manage. 

·    Monitoring and reporting conditions should be reviewable with timeframes.

·    Rights of entry, in particular to residential premises, should be located in the new planning legislation.

·    A separate order for Brothel Closure Orders (BCO) should be considered as a BCO is difficult to fit under order 1 or 15 as it warrants it’s own order number.

·    The current planning system and relevant statutes are ineffective instruments in regulating sex services premises. The assessment of such land uses should consider the owner and/or operator’s background and competence to ensure they are run in accordance with conditions of consent. This would be best facilitated by separate licensing and regulatory legislation similar to that adopted by Western Australia, Queensland and Victoria.


7.         Infrastructure & DevelopMent Contributions


§ There should be a funding strategy/source for all deliverables of a Strategic Plan, whether state, regional or local.

§ The Planning Act should continue to set out the fees and charges for the delivery of ‘planning functions’ (e.g. plan making, development proposal assessment, certification and enforcement). The fees/charges should allow recovery of costs for the delivery of ‘planning functions’ whilst not being cost prohibitive to users of the system. 

§ There should be a review of the Voluntary Planning Agreement (VPA) System and its relationship to the ‘development proposal assessment’ system together with possible further guidelines about negotiating a VPA.

§ There should be one consistent method for calculating cost of development to determine the amount of development contributions payable. Section 25J is difficult to interpret with regard to what is included in the cost of works. Section 25J has a different method for determining cost of works than Section 255 of the Regulation (to work out DA lodgement fee) and Capital Investment Value for Development Applications that go to JRPP etc. 

§ There is a need to review all Development Contributions Practice Notes and Ministerial Directions to ensure there are no inconsistencies. For instances, Section 94E Ministerial Direction dated 10 November 2006 needs to be amended in conjunction with review of 25J of the regulation, but specifically also requires clarification around exemption to 'affordable housing', particularly as it relates to the Affordable Rental Housing SEPP (which came out 3 years after the Direction) as well as Housing NSW applications.

§ There should be capacity for consent authorities to seek development contributions for affordable housing. Section 94A plans should be permitted to be amended to allow the inclusion of an affordable housing levy or councils to separately levy for affordable housing.

§ Consideration should be given to a development contribution system that recognises the total asset lifecycle of existing infrastructure to address the issue of maintenance and replacement.

§ Clearer directions are required in the application of development contributions for Public Infrastructure such as schools, hospitals etc.

§ S94A Development Contribution Plan thresholds should be set, not amendable by Council to ensure equity across councils that have Section 94A Plans.

§ The new Planning Act should make it clear that contributions apply to development approved by a Development Application as well as a Construction Development Certificate issued by Council or the private certifier (so to not need to rely on a clause in Contributions Plan stating that it applies).

§ Council questions the argument consistently put by the development industry that lower development fees will translate into more affordable housing. There are no guarantees that lower developer costs are passed onto the consumer and the burden of providing infrastructure is then simply passed to the new residents.