Item 8.9 - Attachment 2

Submission Draft Policy Statement More Local More Accountable Plan Making - Proposed Amendments to the LEP Making Process



proposed amendments to the LEP maKING PROCESS



There are two proposed changes to the LEP making process in the draft Policy Statement prepared by the Department of Planning and Infrastructure (Department) entitled, More local, more accountable plan making. This submission provides comments on both proposals.


1. Delegate the making of routine LEPs to councils.


§  Greater delegation to councils is supported as it will give councils greater responsibility. Councils previously had similar delegation before the new Gateway system was introduced.

§  An independent review of the NSW planning system is well underway and a white paper expected in the first half of this year. Concern is expressed that the delegations being proposed will pre-empt the outcome of the independent review.

§  It needs to be recognised that the process of drafting amendments with Parliamentary Counsel is often the cause for delay. The proposed changes do not address this.

§  Concern is raised about the degree of process and administration the proposed frameworks will generate for councils. Reporting will be important in providing advice on on-going improvements to the system however they will need to be designed in a manner to ensure they do not become burdensome to councils.

§  Delegation criteria would need to be very clear, especially around spot rezonings. Reference to an “endorsed strategy” and “broader Government policy” is ambiguous. The criteria need to specify exactly what an endorsed strategy is and what these broader Government policies are.

§  Heritage LEPs that are supported by an Office of Environment and Heritage (OEH) endorsed study will require written confirmation from the OEH prior to seeking Council’s endorsement to send the planning proposal to the Department for gateway consideration. Allowing time to receive this confirmation from the OEH, address other potential issues with the planning proposal and meet internal reporting timeframes would exceed the proposed 60 day timeframe for a council to make a determination, potentially exposing the planning proposal to an unnecessary proposed pre-gateway review. 

§  The Standard technical requirements for LEP maps and Standard requirements for LEP GIS data omit certain elements and are in need of review. This has implications for when Councils would be making LEP amendments under the proposed changes.

2. Allow for independent reviews of some council and departmental decisions in the plan making process.


§  This proposal could potentially take decision making away from councils. Concerns are raised on certain aspects of this proposal.

Pre-Gateway reviews

§  There should be no opportunity for a proponent to request a review prior to Gateway when a council decides to not prepare/support a proponent initiated planning proposal. A pre-Gateway review would take decision making away from councils on a policy matter. If the council does not support a significant rezoning proposal, and this decision is challenged by the proponent, the decision making powers are than given to the JRPP/PAC. This proposal contradicts the notion of this draft policy statement of “increasing councils’ roles and responsibilities” in plan making. 

§  The 60 day timeframe is inadequate and unrealistic for councils to assess and make a determination on a planning proposal including a ‘routine LEP’ and in particular a planning proposal that seeks a significant change to the current zoning regime or existing development pattern in a locality, for the following reasons:

o   Even with a proponent lodged fully-documented planning proposal, for significant proposals there may be a range of studies to justify the proposal that need to be analysed. This will require review by experts of reports addressing environmental issues, contamination, flooding etc.

o   Council may seek preliminary advice from State Government Authorities e.g. Office of Environment and Heritage.

o   Council may engage consultants to review specialist reports.

o   Often planning proposals require DCP amendments to address certain aspects that cannot be accommodated in the instrument, and that need to be addressed and processed with the planning proposal.

o   Council may concurrently negotiate a VPA in conjunction with a rezoning, which adds time to the process.

o   Council internal reporting timeframes require reports to be finalised 1 month ahead of the Council meeting; this process alone will only leave 30 days to complete the above sub-points.

§  'Spot rezonings' are often not supported by existing local strategic plans and have a broader context than just the 'spot'. For example a planning proposal may propose urban renewal (mixed use with residential) of just one site within an industrial precinct. This means broader precinct studies need to be done to update or prepare a new local strategy. A 60 day timeframe is not enough time to review local strategies. Additionally regional plans are still in draft form and in need of update and finalisation.

§  Similarly to the concerns raised on the ambiguity of the delegation criteria, the eligibility requirements/criteria for pre-Gateway review are also vague (e.g. “is likely to be supported by agreement from key environmental agencies”) and such is unlikely to be received within the proposed 60 day timeframe.

§  Should a timeframe (working or calendar days?) be imposed then there should be ‘stop the clock’ type provision to allow for certain circumstances to occur such as; external referrals, internal reporting timeframes, VPA negotiations or if the information submitted with the planning proposal is inadequate or omitted.

Gateway reviews

§  Allowing either the council or a proponent independently to instigate a Gateway review could be problematic. Should a Gateway determination impose additional requirements (other than consultation requirements) or makes variations to the proposal the council should be the only stakeholder who can challenge a Gateway determination, not the proponent. When a landowner instigated planning proposal is adopted by council it becomes the council’s planning proposal. It should be the council’s responsibility to discuss the Gateway determination and its position on the matter with the landowner, not the Departments. This approach would be consistent with the notion of this draft policy statement of “increasing councils’ roles and responsibilities” in plan making. 

§  Notwithstanding the concerns raised in this submission, should a review process either pre or post Gateway be adopted, councils should be given the opportunity to make representations at the JRPP/PAC meeting at which any planning proposal is being reviewed given the more extensive local knowledge of council. This would be consistent with the State Government’s mantra of “handing back planning powers to the local community”.

Community consultation

§  Uploading information about a planning proposal at review stage on the Department’s web page will be ahead of the formal public exhibition, will give rise to a 'pseudo' public exhibition. Council will have to deal with public enquiries without there being a framework in place for community comment and possibly without Council having formed a view about the planning proposal.

§  Community consultation occurs too late in the LEP making process - after a proposal has been considered by Council and the Department at Gateway. Timeframes should allow for earlier consultation particularly for major planning proposals. Council has previously resolved to publicly exhibit planning proposals prior to endorsing them for Gateway determination.