Long anticipated reforms to the NSW planning system were released with the introduction of the Environmental Planning and Assessment Bill 2017 into the Legislative Council this month. The Bill largely mirrors draft legislation released by the former Planning Minister Rob Stokes in January, with a substantial focus on increasing community participation and on strengthening strategic planning at the local level.

Introducing the Bill, Parliamentary Secretary for the Planning Minister, Scot MacDonald, advised that the Government’s intention was to trim the ‘middle-age spread’ which had arisen over the EP&A Acts’ 40 years existence, reflected in its growth from a 137-page document to 300 pages. The intention of this ‘trimming’ is to create a faster, more flexible planning system with less red tape.

The Property Council is concerned that the Bill in its current form does not achieve this objective. Rather, in seeking to balance the interests of public consultation and transparency, the Property Council believes that the Bill may result in lengthier and onerous consultation requirements and invalidity risk as a result of technical failures (through no fault of developers) to comply with various community participation requirements.

The Bill does rationalise, consolidate and simplify various provisions relating to the administration of the legislation, the planning bodies established under it, provisions relating to building and subdivision certification and provisions relating to the reviews of planning decisions, which helps to simplify the complexity of the current planning regime.

However, many of the issues identified by the Property Council in its ‘Improving our planning system’ submission, (March 2017) have not been addressed. These include:

Community participation plans:

• Planning authorities will be required to prepare plans explaining how they will engage the community in plan-making and development decisions. These plans will not be on identical terms across the State, meaning different participation requirements will apply across various local government areas. Consultation obligations may be more onerous in some local government areas than others.
• Mandatory requirements for these plans are contained in the Bill and may also be set out in community participation plans to be prepared by planning authorities, with third parties able to commence a legal challenge where these requirements are not wholly addressed (including by the consent authority).
• While minimum periods for public exhibition of plans, development applications, and other matters are specified, maximum periods are not.

Public notification of decisions and reasons for decisions:

• It will now be mandatory for decision makers to give reasons for their decisions and how community views were taken into account in making decisions. This again may give rise to an invalidity risk of contested approvals where there has not been strict compliance with these mandatory requirements.

Local strategic planning statements to inform future planning proposals:

• Councils will be required to develop and publish local strategic planning statements (separate to LEPs) outlining the strategic context within which the LEP has been developed, explaining how strategic priorities (regional and/or district) are given effect at the local level, along with those set out in any community strategic plans.
• The Property Council is concerned that these statements are to be reviewed only once every seven years and may not be reviewed and updated promptly in response to variations in State and regional strategic plans. This is particularly concerning given the Bill does not specify the weight to be given to these statements in the development assessment process.

Local Environmental Plans:

• Councils are required to review their LEPs every five years to ensure they continue to give effect to district and regional plans and that land use is revised in a regular, considered manner (to reduce expensive and ad hoc spot rezonings).
• Some attempt has been made to address the consequences of inaction, as the Planning Secretary can step in where, in the opinion of the Minister or the Greater Sydney Commission, a Council has failed to comply with its obligations in the making of a proposed LEP. However, how the discretion to step in will be exercised is not clear.

Part 3A arrangements:

• The Bill transfers Schedule 6A of the EPA Act, which contains the transitional arrangements pertaining to Part 3A, to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW). This means that the savings and transitional arrangements for projects approved under Part 3A of the EPA Act will continue as they do currently. However, the shift of the location of the savings and transitional provisions from the Act to the Regulations will make it easier for the Government to repeal the provisions in due course.

There are a number of other important proposed changes specified in the Bill including in relation to State infrastructure contributions and planning agreements (including their application to complying development), the enforcement of complying development requirements and other enforcement arrangements and infrastructure delivery.