Following the dramatic climax at the end of last year for NSW’s planning reforms, many would be left wondering about the direction of the NSW Government’s planning reform agenda. Strong indications exist, however, through the Government’s activity during the end of year break as to where we are headed. Below we recap, and make observations on the government’s reform agenda for the remainder of this electoral cycle.
A quick recap
One of the cornerstone reforms proposed by the NSW Liberal Government since it came to power in 2011, involved the reform of the State’s planning laws as set out in the Environmental Planning & Assessment Act 1979 (EP&A Act), now in its 34th year of operation. Since being elected, the Minister for Planning went about implementing this reform agenda first through a Green Paper in 2012, and then through a White Paper in 2013, both of which included wide ranging public consultation. I think most fair minded observers would consider the Government’s public consultation to be one of the most extensive consultation processes for a new piece of legislation undertaken in the State, and it had to do this in order to demonstrate the genuineness of the proposed community consultation and participation reforms under the proposed new regime.
After the above process had run its course on 22 October 2013, the NSW Government introduced the Planning Bill 2013 and Planning Administration Bill 2013 into Parliament. The Planning Bill 2013 contained the operational components, and the Planning Administration Bill 2013 contained details on administration and compliance.
Although the legislation involved almost a substantial re-draft of the State’s planning laws, similarities also existed with the existing regime, including the Bill’s general layout, and its provisions dealing with plan making, environmental assessment, and infrastructure. However, there were five core areas of legal reform:
- strategic planning
- community consultation and participation
- code assessment and reform of assessment tracks
- major projects and infrastructure
- reform of the contributions regime.
However, the coalition were hit with a numbers problem when the Bills arrived in the Legislative Council given the composition of the upper house with only 19 coalition members to the ALP’s 14 members, and the nine members sitting on the cross bench forming what the Minister for Planning termed an “unholy alliance”. As a result, the Planning Bill was passed in the Legislative Council, albeit with 51 amendments, which included removal of the cornerstones of the reforms, “Code assessable development”.
Once received back in the Legislative Assembly, the Government deferred debate on the matter until March this year when Parliament resumes. The Department’s website states the following:
‘Where to from here’?
The Planning Minister has campaigned hard for the reforms proposed in the Bills, and it seems unlikely he will compromise and pass the Planning Bill with the Legislative Council’s 51 amendments.
It equally seems unlikely the Minister for Planning will send the Bills back up to the Upper House as the same numbers issue will continue to haunt the Government in the Legislative Council until the composition within it changes, and it seems fair to assume the Bills will not be sent back up to the Legislative Council in their original form.
Nevertheless, based on a number of new developments during the Parliament’s Christmas recess, the Government has left some clues about its planning reform agenda for the remainder of its term.
Perhaps the reform which provides the best indication of how the Government will progress its reform agenda, but within the current statutory framework, involved the Government’s amendments to the State Environmental Planning Policy (Exempt and Complying Development) (Codes SEPP), which become operational on 22 February 2014. This reform was introduced only a few weeks after the above impasse with the Planning Bill. The amendments to the Codes SEPP have consolidated and expanded the range of development types which fall under the categories of complying or exempt development. The upshot of this is that more development types will be subject to this streamlined approval system under the Codes SEPP.
There are also a number of other developments since late last year, which provide an indication of the direction of planning in NSW during the current electoral cycle.
The first development occurred on 28 December 2013 and involved the Government’s rezoning of 320 hectares of land at Catherine Field in South Western Sydney. This rezoning was fast-tracked under the Precinct Acceleration Protocol, which allows Growth Centre Precincts to be rezoned earlier than scheduled, provided there is no additional cost to taxpayers for planning and forward delivery of infrastructure. It is likely, further large scale rezonings will take place as demand for housing continues to grow in Sydney through migration.
The second development during the recess involved the release of the Planning for Paper Subdivisions Guidelines, which will be used to guide the working of the Environmental Planning and Assessment Amendment (Paper Subdivisions) Regulation 2013 and corresponding paper subdivision provisions now contained in Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) which were introduced earlier in 2013. This is another amendment aimed at increasing housing supply, by activating the development of land ‘trapped’ in ‘paper subdivisions’. UrbanGrowth NSW, Blacktown City Council and Riverstone landowners have been working since 2005 on the development of the paper subdivision known as the Riverstone Scheduled Lands, and it seems likely UrbanGrowth NSW will apply to use this new paper subdivision process for those lands. But according to the Department’s FAQ on the new Guidelines, there are up to “10,000 lots across the state are locked up in the paper subdivisions” and so there is the potential for much broader application of the Guidelines.
In parallel with this emphasis on new housing, on 13 December 2013 the Government has also placed on public exhibition proposed changes to Building Sustainability Index (BASIX) targets. BASIX targets are aimed at reducing water and energy consumption and greenhouse gas emissions for residential homes, and form part of NSW’s development application process.
Part of the reform agenda set by the NSW Government in the Green and White Papers can be achieved without changes to the black letter law. It seems quite clear the Government will continue along with some of these changes that can be implemented without the repeal of the EP&A Act. The new leadership team announced by the Department on 18 December 2013 underscores this, with new senior leadership roles being incorporated into the Department’s organisational chart (i.e. Director of Culture and change, Executive Director, Housing and Employment Delivery, and a Chief Demographer). The elevation of these positions into senior parts of the Department are clearly aimed at achieving some of the recurring themes in the White Paper and Green Paper.