Overhaul to Planning Laws: Property and Planning Update

New planning laws, which the Minister for Planning and Infrastructure claims represent the biggest overhaul of the State’s planning system in over 30 years, are scheduled to be put before NSW Parliament this Spring. In this article, Elizabeth McDonald, Principal of our property and planning team, considers the draft laws and their potential impact on everyone in the development chain.

Released in April 2013, the “White Paper – A New Planning System for NSW’ and the accompanying Draft Bills set out proposed changes which would impact on everyone in the development chain as well as community members interested in providing feedback in relation to development planning.

New planning framework

The White Paper proposes to abolish the existing planning framework (which involves Local Environmental Plans, Development Control Plans, etc) and replace it with a new top-down framework consisting of:

  1. NSW Planning Policies – prepared by the State Government, these policies would set the State’s broad planning objectives;
  2. Regional Growth Plans – also prepared by the State Government, these plans would establish a long-term objectives for regional growth focusing on issues such as infrastructure, housing and environmental management;
  3. Subregional Delivery Plans – prepared by new Subregional Planning Boards (which will include Council representatives) primarily for high growth areas, these plans would identify how some of the Regional Growth Plan targets would be achieved (for example, if the Regional Growth Plan included a target of 10,000 new dwellings, a Subregional Delivery Plan might identify areas to be rezoned to allow residential development); and
  4. Local Plans – prepared by Council, Local Plans would establish the strategy and planning controls (including zoning) for a local government area, as well as the development guides (which will replace the development controls in the existing framework) and contributions payable.

One of the key differences between the proposed framework and the existing framework (which generally share many similarities) is that the Government is proposing a stronger correlation between each level of the planning hierarchy, requiring each Strategic Plan to “give effect” to the Strategic Plan above it. To take the example at point 3 above, when preparing its Local Plan, a Council would need to “give effect” to the housing targets established in the Subregional Delivery Plan and Regional Growth Plan by zoning sufficient land for residential use.

Fast-tracking Development Applications

One of the clear drivers behind the proposed planning law changes is to streamline development. To this end, the White Paper proposes to:

  • expand the range of complying development types – this could include some residential houses; and
  • introduce a new “code assessment” pathway which would require conforming Development Applications to be assessed within 25 days – this could include some townhouses, shops, offices and mixed use developments.

The Government is aiming for 80% of Development Applications to be assessed under these two pathways. Currently, 23% of development proposals go through the fast-tracked process.

Community consultation upfront

The White Paper proposes to change the focus of community consultation in planning matters. The emphasis would be on seeking community feedback upfront when a new Strategic Plan (such as a Local Plan) is developed rather than when a DA is lodged. There would still be a requirement for the community to be notified about Development Applications, but community feedback would not be sought in relation to Development Applications which meet all of the complying development or code assessment criteria. As noted above, the Government is aiming for most development to fall into these categories, meaning that the number of Development Applications on which community feedback would be sought would be greatly reduced.

Other changes

The White Paper outlines many other amendments to the current planning system. Some of the other key changes are to zoning (Local Plans would contain fewer, broader zones), section 94 contributions, infrastructure planning and building regulations and certification.

Where to from here?

The Government is currently engaged in a community consultation process. Our expectation is that many of the submissions will relate to the key changes identified in this article, particularly the new approach to community consultation.

The Government is scheduled to release a report on the community feedback in August and may amend its draft Bills to accommodate issues raised during the consultation period. If the Bills are passed by Parliament, it seems likely that a lengthy transitional period would be required to allow new Strategic Plans (including Local Plans) to be developed.

For more information regarding the White Paper and how it may affect your organisation, please contact us.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.