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
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,
§ 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
§ Strategic land use plans
should be statutory instruments with greater weight to provide certainty for the
§ 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
§ 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 out
§ The objectives of the new Planning Act should:
- Be meaningful and out
- 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
§ The Planning Act should be reviewed at least once every 5 years.
§ There needs to be ‘effective’ and ‘inclusive’
§ 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
§ There should be a
2. Plan Making
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
§ 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.
§ The concept of
§ Standard Instrument limitations - applied too rigidly,
§ 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
§ 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 (
§ It is crucial that all flood related practice notes, circulars, s117 directions manuals, plans and policies are consistent and streamlined.
3. DEVELOPMENT PROPOSALS AND ASSESSMENT
§ 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 ‘
§ 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
§ 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
§ 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 ac
§ The planning system should ensure that the impact
of development/s that is perceived to be remote from but directly affecting a
§ 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
§ 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
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 out
· 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
· Councils should be
allowed local expansions to any list of exempt and
· Properties with
existing nonconforming uses should have access to exempt and
· Objections to
· 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
· 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
· 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
· 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
· 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
· There should not be a requirement for
rectification works to remove unacceptably impacting non-
· Neighbours should not have statutory
plans should be required to be
· 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 ac
· The certifier should ensure the consent is
· The certifier issuing a Final Occupation
Certificate should be required to certify that the
· 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.
should be incorporated with an administration fee which is prescribed and not
appealable similar to the Protection of the Environment Operations Act 1997.The
· 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.
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
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.