Item 9.6 - Attachment 2

PCC submission on the Green Paper






General Comments on delivering a new planning system:


·    The central objectives of a new planning system are supported: to reduce complexity, increase focus on strategic planning, focus on economic outcomes, streamlining development assessment, integration of infrastructure with land use planning, reduction of red tape and providing greater access to information about planning policies, including making policies more user-friendly.

·    Concern is raised that the new system and hierarchy of strategic plans will be too complex and lengthy to prepare. There is little discussion about the resources (people and financial) required to prepare and deliver these new plans, but these resources are likely to be significant. 

·    Local Councils will have less say in strategic planning for their local areas with more weight given to regional and metropolitan strategic plans.  Councils should have a greater role than just participatory in the making of Regional Growth Plans and Sub-Regional Delivery Plans: e.g. Parramatta will be a regionally important and lead city in Western Sydney, yet Council will only have a participatory role in determining the plans that will influence this growth.

·    There is a general lack of detail in the Green Paper to grasp the mechanics of implementation and transitional arrangements. For instance, how do Councils deal with code and merit assessable applications when the new Act is enforced, when Regional Growth Plans and Sub-Regional plans are going to take a considerable period of time to complete and a further period of time to then complete new Local Land Use Plans.

·    Provisions are included to allow prohibited development to be considered before the new range of strategic plans are prepared and this has the potential to undermine the purpose of the strategic plans even before they are prepared. Added to the intent of the new system to facilitate economic growth and to be more responsive to the market, the strategic plans could fail to materialise in time to perform their central role in the new system.


·    Consideration must be given to realistic timeframes for the completion of the various new plans proposed under the new Act to avoid a repeat of the lengthy and resource draining process for standardising of LEPs. It must be recognised that there will be a long transition in the implementation of all components of the new Act and system.  Staging of the introduction of components of the new system may be required.


·    Streamlining of the development assessment process is supported. However, a greater use of code based assessment relies on the new strategic plans and Local Land Use Plans being in place, so again the system could fail if these plans are not able to be delivered in a short time frame.  Code assessable development should not be introduced until such time as the strategic plans and new Local Land Use Plans are finalised. The legislation should stage the introduction of new provisions to ensure that this occurs.


·    Greater use of code assessable and complying development will reduce the opportunity for community consultation to occur at the local level. The new system proposes to engage the community in consultation when the strategic plans are prepared. However, it is very difficult to engage local communities at this higher level of plan making.


·   The detail will be delivered in White Paper at which stage there needs to be sufficient time allowed for consultation due to the complexity and scope of the new Act. The timeframe for consultation on the Green Paper, White Paper and Exposure Bill is insufficient and poorly timed to overlap with the period of local Council elections and settling in of new Councils. There needs to be time to brief new Councils and to assess the detail in the White Paper, with sufficient time for meaningful consultation before the Exposure Bill is finalised. The limited timeframe suggests there will be little opportunity for review or amendments to the new planning framework.

·   It is also strongly recommended that the State Government should release the White Paper for consultation ahead of the Exposure Bill to allow for feedback on the more detailed provisions in the White Paper before the Exposure Bill is finalised and tabled.


Community Participation: 

·    The emphasis of strategic planning up front is supported, but traditionally, it has been difficult to get the community to engage at the strategic level, which will need to be achieved for the proposed arrangements under the new Act to succeed.  It will be difficult to convince local communities to engage with consultation about regional level plans, but this is where the determination of land zoning and building envelopes will be made – if local communities do not engage with consultation at this level of strategic plan, then they will have little say in the zones applying to their local area when the local plan is prepared.

·    There are no details of how effective community engagement will be undertaken or measured. For example, how will a decision be made if different sectors of the community are polarised on their preferred option for the area? An example might be land owning developers versus land owning residents. It is recommended that clear guidelines be established on how community engagement must be undertaken and include identification of resource requirements taking into account varying demographics of different areas.


 Accessible planning information:

·    The notion of e-planning is supported. Parramatta City Council has recently launched its first stage of an e-planning portal, called PLAN, for users to easily obtain planning information in relation to a site. Council is currently in the process of developing ASSESS and in the near future LODGE.  The ASSESS tool (an internal workflow system) will enable officers to address all required controls and progressively builds the assessment report and the LODGE tool will enable the lodgement of electronic applications. E-planning will become a fundamental tool in communicating planning rules and processes; however its development and associated procedures (i.e. maintenance, changes etc) has and will continue to take a significant amount of resources.

·    Further support for cloud based services like GIS online and ICON is required to make spatial information available across the state so that all Councils, including smaller ones, participate in technological change. Currently it is fragmented across local Councils and state agencies rather than a “whole state approach”.


Strategic Focus:


·    The emphasis is on de-politicising planning at the local level but does not address the problem at state and regional level planning, where plans and policies will continue to be in a state of flux when there is a change in government.

·    The lifespan of planning policies, regional and subregional plans is not addressed. How will these plans react to changing priorities and community expectations over time?


·    Sub-regional delivery plans will be required to respond to market demand, yet longer term strategic goals may not be favoured by the market in the short term. e.g. In the case of the Parramatta CBD, Council has a longer term strategic focus on protecting the commercial core to secure employment growth, whereas the current market conditions strongly favour residential floorspace over commercial office floorspace.  The market should not be the over-riding consideration where there is conflict with sound longer term strategic goals, as this will undermine the strategic intent of plans.   For example, the Green Paper (pg 55) states: “Over time market conditions may change and the envelopes and land uses set out in a Sub-Regional Delivery Plan may no longer provide for desired development outcomes. In that case a proponent may come forward with a proposal that seeks to vary some of the standards and requirements set out in the Plan”. This will allow Local Land Use Plans to be undermined and give rise to confusion about the role of the Sub-Regional Delivery Plan and the Local Land use Plan.


·    Aligning infrastructure delivery plans will not keep pace with market fluctuations as infrastructure takes much longer to deliver.

·    There is no provision for policies expressed in local community plans or local strategic directions if they do not align with regional and sub-regional plans.  The hierarchy of strategic plans will give priority to regional and sub-regional plans.


·    “Where local land use plans do not reflect metropolitan and regional strategic planning outcomes following a strategic planning process with community participation, applications should be assessed primarily against those strategies, rather than out of date controls in the existing local land use plan” (Pg 54 of Green paper). This suggests that regional and sub-regional plans will over-ride local plans and also raises the issues of transition to the new regime of plans. Swift timing and delivery of the new plan hierarchy is vital as this approach will undermine local land use plans as well as compliance and confuse users of the system.


·    For sub-regional delivery plans, there is a need to review sub-regional boundaries so that economic growth patterns, infrastructure catchments etc are grouped appropriately. For example, Parramatta’s catchment does not align with LGA boundaries, or the current West-Central sub-region. The natural sub-region should broaden to include Ryde, Hornsby, parts of the North West sub-region, as well as the West Central sub-region. There are many variables in Western Sydney. It is not a homogeneous area and connections of Parramatta to Sydney as a whole need to be reflected in sub-regional planning.

·    Subregional Delivery Plans will require groups of Councils to collaborate to come up with appropriate direction for their region and lets Councils ‘trade off’ allocated growth requirements. This assumes that concurrence can be achieved by the Councils and assumes that there is a level playing field. Some Councils will be more resourced both financially and in staff numbers and time and may push to have their preference favoured. These decisions will also be influenced by politics and the size and variables within the sub-region.


·    It is unclear who will fund the Regional Growth Plans, Sectoral Plans, Growth Implementation Plans and Sub-regional Delivery Plans and what resources will be allocated for their preparation.

·    The Regional Planning Board should include representation from Utility providers (page 39 of Green Paper).

·    Changes to the NSW Planning framework should guide and maximise the benefits of transitioning to a low carbon economy for the State of NSW. The objective of the new Act should clearly state this as a desired purpose.

·    The Green Paper includes encouraging statements that the environment will be given appropriate attention, including the following:

- That “when implementing strategic planning”… “the objects must promote triple bottom line outcomes”;

- That “one of the overarching purposes”…is “to protect the environment”, and “to resolve land use trade-offs based on social, economic and environmental factors”; and

- That “strategic planning will deliver better environmental and conservation outcomes”, detailing that “evidence based strategic planning at the regional and subregional planning level will deliver improved biodiversity and environmental outcomes instead of the ad hoc case-by-case assessments.”

However, much of the success of the new system will depend on the details of how this is implemented.

·   It is recommended that the principles of ecologically sustainable development (ESD) and urban sustainability be explicitly included in the objectives and throughout the new Act.

·   The proposal to address cumulative impacts of development in regional plans is strongly supported. It is suggested that the detail in how this is implemented provides suitable mechanisms to ensure cumulative aspects can be sufficiently considered at the local level.

·   The new legislation should ensure not just environmental sustainability, but also protecting and enhancing health by creating and maintaining a built environment that supports people to live healthy lives.  Health impact principles should be embedded in strategic plans at the state and regional level to ensure that these principles become an important element of the new planning system.


Local Land Use Plans

·    In the absence of information about transitional arrangements, it is not clear what the impact will be on the Standard Instrument LEPs.  It appears that a new regime of LEPs will need to be prepared by all Councils. (Table on Pg 43 suggests there will be a ‘reformed more flexible standard instrument’).  For zoning and permissible land uses, a new regime with a broader range of uses is proposed. Preparation of new Local Land Use Plans will place a huge demand on Council planning resources after Councils have only just completed their new Standard Instrument LEPs, or in some cases are still in the process of doing so.

·    It is unclear whether the Infrastructure and Services component of a Local Land Use Plan is the current Section 94/94A Development Contribution Plans. Greater clarity is required.

·    Whilst there is support in principle for a suburban character zone, it is unclear whether this will be the only residential zone where medium or high density development can be excluded. This zone is stated to be for areas to be preserved because of the ‘proven significance of the urban character or because of its established development patterns and amenity’, however, there will be many established residential areas with a pattern of predominantly low density but with variable character, where councils may want to exclude medium and high density residential development. It is unclear if these areas can be Suburban Character Zones.

·    The enterprise zone should be applied with a degree of caution particularly if little to no degree of development control is provided. Allowing residential development in an area “generally targeting to attract employment generating development” (page 45 of Green Paper) will compromise this outcome in a market that is currently driven and focused on residential development.

·    There is concern that the Future Urban Release Zone would push up land price which would reduce housing affordability in the long run.

·    Caution needs to apply to allowing greater flexibility and a broader range of permissible land uses in environmental zones as this will facilitate cumulative impacts on sensitive ecosystems.

·    Zones in Local Land Use Plans (LLUPs) will be set in Sub-Regional Delivery Plans but enforced in LLUPs. Greater clarity is required on how this will work. There should be only one plan that legally prescribes land zoning and has the ability to rezone land to avoid unnecessary duplication, complexity and confusion in the new planning system. 

·    More flexibility in the planning system is generally supported. It is agreed that DCPs should be streamlined and focus on performance based outcomes with guidance through development control; a move away from a “rule book”.  However, this needs to be balanced with a level of certainty for the community, developers and practitioners. It is unclear whether this will be the case with the new hierarchy of plans and format of LLUPs. Development controls in LLUPs will need to provide certainty to the community about on the ground outcomes when DAs are lodged.

·    The Standard Instrument has provided a level of rigidity to LEPs and controls within them. The Green Paper refers to the standard Instrument as an example of simplifying land use plans. However in most instances it has complicated it.  LLUPs require a level of flexibility to address the differing variables of each Council, but must still be able to provide certainty of outcomes.


·    Delegation to councils to undertake amendments to LLUPs that are consistent with NSW Planning Policies, applicable Regional Growth Plans and Sub-regional Delivery Plans is supported.

·    The independent review of Council’s decision on whether a rezoning should go ahead is not supported as this undermines the Council’s strategic role and authority to implement its LLUP. However, if there is to be an opportunity for proponents and Councils to seek a review of decisions will there be any review right for other agencies and community organisations or individuals?


NSW Planning Policies

·   It is agreed that all existing SEPPs and Section 117 Directions should be repealed and replaced with a succinct series of NSW Planning Policies. The SEPPs and Section 117 Directions have become overly cumbersome and in some instances irrelevant. Direction will need to be given to councils about which existing SEPPs that include development control provisions should be incorporated into the LLUP. LLUPs should be a one-stop-shop for all controls. This approach will significantly simply the planning system and increase the integrity of the LLUP.

·    The NSW Planning Policies must address the uncertainty and issues surrounding flood management in NSW.

·    There is a focus on housing delivery in greenfield areas. Priority should also be given to providing more housing in established areas close to existing centres with better access to infrastructure, services and jobs. 

·    The purpose and role of each plan in the new plan hierarchy needs to be absolutely clear.


·    The planning system and Act must adequately address urban design, heritage (indigenous and non-indigenous), environmental and social matters in the formulation of each plan as well as the NSW Planning Policies.


 Development Assessment and Compliance

·    Code complying development is proposed to be maximised, with extended use of current Code SEPP. This is already overly complex and difficult to interpret and has created problems for local councils which have to address problems with private certification when they arise.  While increasing the use of code complying assessment is supported in principle, there needs to be greater regulation and responsibility of accredited certifiers. For example accredited certifiers and the Building Professionals Board should become the contact for complaints/ questions regarding Complying Development Certificates (CDCs) they have issued. A complaints and response register should be required to be kept and reported to the Building Professionals Board or Department of Planning and Infrastructure on a periodic basis, say quarterly or annually.

·    CDCs should require broader levels of notification to neighbours to keep them informed of what is happening and providing the contact details of the accredited certifier as the primary contact.


·    Accredited certifiers need to be held accountable for ensuring that they are identifying the necessary payments that need to be made to other agencies as part of a CDC e.g. long service levy, development contributions etc.


·    Building Professionals Board; DP&I; or Independent Ombudsman need to oversee the conduct of accredited certifiers.


·    There needs to be standard conditions of consent created for all complying development types including the need to pay development contributions where relevant.


·    The Code SEPP will be extended to new industrial buildings on industrial land, additions to those buildings, additions to existing commercial buildings, townhouses, terrace housing and villas and houses on small lots.  These amendments are yet to be made available for public consultation. Concerns about how the new zones and broader range of land uses permissible in existing zones will combine with the expansion of the Code SEPP e.g. will town house development be permissible in an R2 zone, within a certain distance of a railway station, as complying development?

·    Code assessable applications that comply may not necessarily be of good urban design.  Provisions to ensure good urban design are required. Efficiency in gaining development approvals should not be at the expense of high quality urban design.

·    The proposal to ‘streamline’ the development process and environmental impact assessment requirements has the potential to erode environmental outcomes.  In the development of the new Act it is important to establish clear decision making criteria and objective tests for development assessment and approval, in particular, that environmental outcomes are maintained or improved (for example, in relation to water, salinity, biodiversity, native vegetation, pollution, heritage, energy and water efficiency).

·    The proposal to use accredited assessors to carry out environmental assessments is strongly supported. This provides additional independence and integrity. The systems of accreditation must be carefully considered and adequately resourced.

·    Strategic compatibility certificates may be issued where development is incompatible with the LLUP, but consistent with the regional or metropolitan plan and are to be determined by the Director General of DP&I, with review by JRPP if Council or the proponent is dissatisfied. This may undermine the integrity of the LLUP as well as create complexity and confusion in the new system.

·    As community consultation is undertaken at the Subregional Delivery Plan stage what provision will there be for community consultation in respect of strategic compatibility certificates?

·    The removal of concurrences at the development approval stage is supported. Relevant approvals should be obtained at the strategic planning stage where possible.


·    The full merit assessment example provided on page 57 exceeds the building envelope i.e. floor space ratio controls and height controls. What would the extent of the variation be to trigger a formal rezoning amendment? The variation is just that – a conflict with the LLUP and sub-regional plan. Measures would need to be put in place to ensure variations that are warranted are dealt with efficiently and appropriately.

·    A reason for the delay in determining some development approvals is due to the inadequate/incomplete documentation that is lodged. A standard set of requirements and documentation (including the quality of them and the information contained within them) should be examined. 

·    The approach in the Green Paper of providing advice and opportunity to an applicant to modify a development application which without amendment would be refused is supported and consistent with the approach already taken by Parramatta City Council.

·    Smart consent conditions as described in the Green Paper are supported. To ensure consistency between Councils it is recommended that the Department establish a set of ‘Standard conditions’ to be used by all Councils and that these conditions cannot be contested by the Land and Environment Court. Council’s should also be able to add ‘special conditions’ outside of the standard conditions. However these must be clearly identified in a development consent and may be subject to LEC challenge.


·    The concept of depoliticising decision making is supported. The inclusion of an Independent Ombudsman to oversee the conduct of any decision making body i.e. IHAP, JRPP, PAC should be considered.


·    Page 55 refers to concept development applications – where standards and requirements in sub-regional delivery plans may not adequately address consent authority code assessment. There is a lack of detail to understand what is actually proposed.


·    Page 57 refers to a merit assessment approach for any development that entirely exceeds a prescribed envelope. This may be reasonable in certain areas but would most likely be difficult to assess and would need very clear and concise objectives and principles to guide such a merit assessment. Any such development would have to demonstrate a greater public benefit including social, economic, environment and the like and should be subject to a ‘net community benefit test’ or similar.


·    Page 60 refers to limiting information required at lodgement stage. While this is supported in principle there needs to be recognition that assessment of some matters during the approval stage may result in required changes to the overall design. If this matter is not addressed until post approval this may require modification of consents.


·    Page 61 refers to increasing the involvement of JRPPs in additional stages of development assessment. This may actually delay processing times and a better approach may be that the development is assessed ‘as lodged’ and that recommendations be made to the JRPP for design changes and if the application is revised based upon the requirements of the JRPP it can be approved without going back to the JRPP.


·    If JRPP is involved in both the pre-lodgement stage of a development application and also is the determining authority, issues of probity could arise. If the JRPP is also the appeals body for strategic compatibility certificates issued by the Director General, then the JRPP also becomes an authority for strategic assessment, adding additional probity issues.


·    A mechanism is proposed for review of DAs and modifications where senior staff of the adjoining Council(s) undertake the review of a DA where the decision was made by Council staff. (‘Jury duty’)  This would be better if undertaken by the IHAP for the Council, (although it is not clear that all Councils will have to have an IHAP). However, senior staff will not have the capacity/resources to undertake this work for adjoining Councils.


·    In the streamlining of development assessment, consideration needs to be given to Crown development applications and timeframes for determining such applications where there are unresolved issues. For example, Parramatta City Council has had an application lodged on behalf of HousingNSW for 767 days, where Council has been unable to secure a resolution on outstanding issues. 

Infrastructure Planning and Co-ordination


·    The Green Paper identifies some principles for reform of the framework for developer contributions, but details of changes will not be delivered until the White Paper. This will leave little time for review and comment.

·    The delivery of infrastructure is heavily focused on housing delivery particularly in Greenfield areas. Although this is important, just as important is infrastructure that supports critical employment areas in Sydney’s major centres. (For example, the Parramatta CBD and the Westmead Medical Precinct to address not only the back-log of infrastructure but to also service the needs of the growing population including residents and employees.)

·    There is inadequate consideration of the needs of infill areas or employment lands and more account needs to be given to infrastructure as a necessary means to drive economic growth and employment.

·    The Green Paper mentions potentially phasing out Voluntary Planning Agreements (VPAs) or linking them only to larger precinct developments. The phasing out of VPA’s that are linked to smaller rezoning applications is not supported. VPA’s have been useful tools to gain public benefit from the value uplift gained by a proponent initiated rezoning. VPAs have provided genuine public benefit for the community of Parramatta being in the form of foreshore land, intersection upgrades, public domain works, etc. Further, Council has an Affordable Housing Policy and an associated Bank which relies on the planning system to deliver affordable housing units through the mechanism of VPAs.

·    The idea of private sector tendering for larger government infrastructure projects (page 69) is supported.


·    The Growth Infrastructure Plans (page 72) seem to only concentrate on key infrastructure and utilities such as roads and transport, water, electricity, and telecommunication. This needs to be extended to other major infrastructure such as schools, university, hospitals etc and other infrastructure such as open space and recreation facilities including swimming pools and parks, public domain improvements, community centres, libraries, childcare centres etc. Growth Infrastructure Plans are essential to facilitate growth of employment in established centres where infrastructure improvements are essential to facilitating employment growth e.g. Westmead Medical Precinct.


·    The State Infrastructure Plans and Long Term Transport Masterplan talk about a 20-year forecast but it is recommended that this be extended to a longer time period to enable infrastructure delivery to meet demand beyond the next 20 years.


·    The Growth Infrastructure Plans are currently being developed by Infrastructure NSW. It is questioned as to what involvement local Councils will have in developing such plans under the new Act (other than by means of lobbying).


·    Page 72 states that Growth Infrastructure Plans will be prepared in conjunction with Subregional Delivery Plans. However, there needs to be a clear and committed timeframe for the provision of infrastructure to ensure that infrastructure delivery coincides with redevelopment.


·    The need for infrastructure corridor reservations is identified, however it is essential that these extend beyond the 20-year time frame of the State Infrastructure Strategy and Long Term Masterplan (page 73). Reservations should also be extended for other purposes including open space.


·    The Green Paper seeks to extensively reduce the types of infrastructure for which development contributions can be spent, namely limited to local roads, local drainage and land for community facilities. A regional levy may be applied for open space and drainage and regional roads, land for health and education and land for emergency services. The paper does not discuss how other infrastructure such as libraries; community centres etc currently provided by Councils will be funded. Should this planning reform proceed, the Minister needs to consult with IPART etc to assist Councils in achieving alternative funding sources for delivery of other infrastructure, say through removal of rate capping.


·    The Paper also seeks to restrict levying of development for ‘Regional Open Space Levy’ to residential development. This fails to take into account the open space and drainage needs of commercial areas such as CBDs and major centres that require also require open space provision for employees and visitors etc.  (page 76)


·    Page 78 refers to a fixed percentage levy based on Capital Improvement Value. There is a need to ensure that there is one definition for calculating the development cost as opposed to the current system, which defines 3 ways to calculate development cost.


·    Much of the paper focuses around s94 contribution as opposed to s94A contributions. Any review to the contributions framework should retain the flexibility of s94A of the Act particularly for infill areas. Furthermore, funds should be able to be spent without the need to adhere to a works programme if they are spent on predetermined types of infrastructure on a needs basis. This may provide more flexibility as needs change and works programs become outdated.


·    Page 78 refers to extending the timing of payment to later in the development phase to reduce holding costs of the developer during the development stage. While this is supported in principle there need to be adequate mechanisms in place to ensure that Councils can seek their payment within a timely manner and that Councils should not be subject to unnecessary resourcing costs to police payment verification.


Delivering a New Planning System


·    Local Councils should be represented on the CEO’s Group and Regional Planning Boards to ensure adequate consideration is given to the representation of local issues in approved strategic and infrastructure plans.