NSW Planning law reforms 2017: Podcast transcript
Below is a transcript for Planning reform podcast: an expert view from EDO NSW.
Hello and welcome to our podcast on the 2017 NSW planning reforms. I’m Jemilah Hallinan, Director of Community Outreach at EDO NSW. We’re a non-government community legal centre and we specialise in planning law.
The NSW Government has recently released a draft Bill to change the planning system, with a number of supporting documents to explain the Bill.
To help us understand what the Government has put on the table I have with me Nari Sahukar, our senior Policy and Law Reform Solicitor.
You may remember the Government tried to completely overhaul the planning system back in 2013. A whole new Planning Act was proposed,, but it was never passed. So we still have the Environmental Planning and Assessment Act, and these new reforms will make changes to that Act.
Nari, in a nutshell, what do you think of the reforms?
Well they are a mixed bag. We can see some positive changes around public participation, major project modifications, and enforcement of breaches. Some proposals are more concerning, for example, expanding developers’ rights to internal review of major project decisions, while at the same time, continuing to remove community merit appeal rights in some circumstances.
There is a lot in there and we won’t be able to cover everything today so what are the main things you want to talk about?
In this podcast we’ll take a look at:
- Changes to how you can have your say on local and major development,
- who makes those decisions at local and state levels, and finally,
- some missed opportunities in the Bill and how we can deal with them.
Let’s start with local development. The reforms propose some important changes to how the public can participate in local planning decisions.
Yeah, so there is a new requirement for planning authorities – so that would include local councils and the Planning Minister - to prepare a Community Participation Plan.
What are community participation plans?
They will set out how and when the planning authority will involve the public in a range of planning functions. So things like how they’ll consult locals on developments nearby, or changes to zoning under the Local Environmental Plan (the LEP).
So does that mean each planning authority will be able to set its own public participation requirements?
To some extent yes. But the Act will also set out minimum public exhibition and notification requirements that the plans will have to meet.
And when they are making the plans, the planning authorities will have to consider 8 new community participation principles which basically support the community’s right to have meaningful opportunities to engage in the full range of planning matters; and be supported to do that with easily accessible and understandable information.
That sounds positive.
It is. But a planning authority just has to consider the principles when making the plan.
Also, the plan’s commitments are only binding if they say they are.
Could that make the plans unenforceable, or ineffective?
That is a risk - it really depends how each authority responds to these new requirements.
The plans will be publicly exhibited before they are made so the community will have an opportunity to comment on the drafts.
Also, if a council or agency doesn’t follow the proper procedures, a plan could be challenged in Court within 3 months of being made. So that’s a good thing.
But it would be better if the plans had to reflect the participation principles, and if the commitments in the plans were mandatory by default.
Let’s move on to who’s making the decisions on development – starting with local planning panels. These are new. Can you explain what they are?
Local Planning Panels will replace what are currently known as Independent Hearing and Assessment Panels. Some councils have set these up to make more complex planning decisions.
The new Local Planning Panels will have 3 members – usually all appointed by the local council. One will be a community representative and two will need to have expertise in one of a number of listed fields, such as planning, architecture, heritage, the environment, or economics.
What will they do exactly?
Councils will make the rules on what matters go to the Panel but it’s likely the Panels will determine more complex and contentious applications. Council staff will still handle most development applications.
A model code of conduct and operating procedures will standardise how the panels operate across the State.
So will all local government areas have a local planning panel?
No, it will be up to the local council to establish a Local Planning Panel. Although, the Minister will be able to direct a council to appoint one in some situations, such as where there’s a conflict of interest.
Moving from local to State-level development decisions, it looks like changes are proposed for the Planning Assessment Commission, or PAC.
Yes. The Bill proposes to rename the PAC the Independent Planning Commission and change some of its functions.
How will its functions change?
At the moment, the Commission has two separate roles in reviewing and deciding on contentious State significant developments – which are high-investment, high impact private developments like mines.
Under the changes, the Commission will continue to decide whether to approve certain State significant developments, but it will no longer have that earlier review role.
So what kinds of developments will it be making decisions on?
We’re waiting on amendments to a State policy to know for sure.
At the moment – the Commission is the decision-maker for all State significant developments where there are more than 25 objections; where the local council objects; or where there is a reportable political donation from the developer.
One of the more controversial aspects of the current Planning Assessment Commission is that if it holds a public hearing into a proposed development the community loses its right to legally challenge any subsequent approval on the merits. Is this still the case?
Unfortunately yes. And this is our biggest concern about this aspect of the reforms.
The Minister will continue to have the discretion to ask the Commission to hold public hearings before making its decision about a development and this removes the right of objectors to appeal the merits of the decision in the Land and Environment Court.
Will there always be a public hearing for State Significant developments?
No, not necessarily. That’s the Planning Minister’s call. But it’s our experience that the Minister directs the Planning Assessment Commission to hold a public hearing for all mining proposals, for example.
Why is it so important for the community to have the option of brining a merits appeal?
For a start, it’s an equity issue – if you’re a developer you can appeal almost any refusal or development condition. Whereas merit appeals for the community are limited to objectors and to certain high impact developments.
In a merits appeal, the Court stands in the shoes of the original decision maker and can make a fresh decision. This gives communities an opportunity to test the proponent’s assertions and put a different, uniquely community-based view.
The court might uphold the approval, but will often attach additional conditions to help reduce the impacts of the development and, in some cases, the court will say that the development shouldn’t go ahead at all – usually because it will have unacceptable impacts on the community or the environment.
The Independent Commission Against Corruption has also found that objector appeal rights are an important disincentive for corrupt conduct – so merits appeals are a critical check on decision-making powers.
Why is it that holding a public hearing can remove the right to bring a merits appeal?
A public hearing has some similarities to a merits appeal but they are not as rigorous or equitable as a court hearing where evidence can be properly tested.
The Bill tries to improve how the Commission conducts public hearings, but in our view they are no substitute for merits appeal rights. Especially for State significant developments which are, by their very nature, likely to have the most intensive and far-reaching adverse impacts.
The other thing is, the Bill proposes to extend developers’ rights to internal review of refusals or conditions, for the same sorts of projects. We think this will make decisions less transparent and less inclusive. Unlike court hearings, these internal reviews happen behind closed doors, with no community input, and give the developer another bite at the ‘approval cherry’.
So if the aim of the Bill is to increase public confidence in decisions, it sounds like we do need to address that disparity of rights.
Let’s talk about a change the community is likely to support – and that’s putting another nail in the coffin of Part 3A. Many listeners will be familiar with the old Part 3A of the Planning Act, which provided a fast-track pathway for major projects. It was repealed in 2011 but ‘transitional provisions’ mean that Part 3A has continued to apply to hundreds of projects since then. Are we finally going to see the back of Part 3A?
For the most part. The plan is that all Part 3A projects will be moved into the updated system – mostly as State significant development.
Importantly, the Bill proposes to finally switch off the ability to modify or expand projects under Part 3A. Instead, these proposals will be assessed in the same way as other modifications – under s. 96 of the Act. This is more rigorous, transparent and consistent.
Now there are some qualifications around Part 3A which I won’t go into now, but if you’re interested, check out our briefing note and submission online.
OK great. Let’s talk about missed opportunities – because we’re often so distracted by what is proposed that we forget to think about what is NOT being proposed. Are there any gaps that need to be addressed before the Bill hits Parliament?
There are a few that stand out.
First, the Planning Act’s objects don’t mention climate change. This is a problem because most NSW greenhouse gas emissions come from developments that are approved under the planning system.
Back in November, the NSW Government committed to a goal of net-zero emissions by 2050, but planning authorities don’t have any guidance on how to achieve this.
We need to integrate emissions reductions targets and adaptation plans into the planning system – to help councils, decision-makers, developers and communities to be climate-ready.
So what would that look like?
We could start with a climate change object in the Act. Something along the lines of “to respond and adapt to climate change and reduce greenhouse gas emissions from NSW sources.
The Act could then require climate change to be addressed in all strategic plans and major development applications.
So a new object on climate change? What do objects do exactly?
Objects set out what an Act is intended to achieve, and guide decision-making.
Another important missed opportunity relates to the object to “encourage ecologically sustainable development” or ESD. Basically ESD is a way of making the environment more visible in decision-making than it has been in the past.
In the last attempt at reforms, more than half of public submissions said that ESD should be the main object of the Act, not just 1 of 10 things to think about. We agree that achieving ESD should be the main object. Other objects should flow from there.
So that’s 2 missed opportunities. What else?
The third relates to consent conditions. Conditions place enforceable limits on the development and are often used to minimise negative impacts, like noise or dust. Some consents are decades old, but there’s no general power in the Act to keep conditions up-to-date with modern environmental standards. On the other hand, there’s an ongoing right for proponents to ask that project conditions be modified.
We think consent authorities should be able to update consent conditions in response to new environmental information.
And what is the final missed opportunity?
The Government’s working separately on policies to improve environmental impact assessment for major projects. We think this Bill provides an opportunity to make assessments more independent by law.
So, for example, environmental consultants who prepare reports should be professionally accredited. And there really needs to be a requirement that consultants and agency staff keep their skills up to date – like lawyers have to. We also think that significant environmental assessment reports should be independently peer reviewed – to ensure the claims are supported by the evidence, and best practice methods have been used.These changes are critical to public assurance that assessments are objective, and this Bill is a chance to enact them.
Well you’ve certainly given us a lot to think about. What should people do it they want to comment on the proposed changes?
I’d encourage everyone to dip into the Government’s documents and have a read. You don’t need to be a lawyer to understand them.
At EDO NSW, we’ve already released a short briefing note on our website which touches on most of what we’ve just discussed. And we’ll release our full submission on the reforms in early March.
To have your voice heard, it’s important to write a submission. It should focus on your key concerns but it should also set out what aspects of the reforms you support, as there is no guarantee these will be retained in the final Bill.
When are submissions due?
The Government has extended the deadline for submissions to Friday 31 March.
OK folks, that’s all from us. We hope you’ve found this useful. Check out the Law Reform section of our website for more resources. You can find us at edonsw.org.au
And if you need free initial legal advice on a planning or environmental law matter, give us a call on 1800 626 239.
If you want to support our work, you can make a tax deductible donation on our website.
Bye for now.