Optimising School Development: A review of the planning system and school developments

In brief: Before a school undertakes a development, they must consider the type of development needed, relevant timeframes, costs and funding, and the best pathway for the proposed development to mitigate community complaints and hostility.

Background

The growth in demand for new developments in schools requires those involved in school developments to understand each State or Territory's complex planning and environmental laws. This is important given the open standing provisions people have to challenge unauthorised developments or invalid decisions relating to the development of schools (as well as other forms of development). In our experience, schools that have a vision for development that corresponds with their school's ethos, philosophy, and longer-term educational needs have better development outcomes compared to schools that take a more piecemeal, reactive approach. 

Demand for development in the education sector 

Independent Schools Australia advises that "Over the past five years, the Independent sector has seen an average enrolment growth rate of 2.3% per year which exceeds overall student population growth over the same period (1.2%)."

This statistic shows growth in enrolments over the past few years, which is expected to continue due to migration, parental desires to provide broad education opportunities for children, and the market for faith-based education programs. 
To keep up with the growth, schools need to plan and build new facilities. However, school development now goes well beyond building classrooms. 

Schools are increasingly being developed with state-of-the-art gyms, concert-grade auditoriums, pools and stadium-sized football fields with car parks beneath, as well as new classrooms. 

The complexity of delivering these facilities is amplified by the proliferation of planning and environmental legislation across Australian jurisdictions. Planning and environmental law has many layers, as it includes various statutes, regulations, and planning instruments, as well as the body of jurisprudence that has developed, covering issues like the built form, biodiversity, pollution, contamination, flood and fire. 

Social trends influencing development controversies

Growing NIMBYism in our suburbs has rendered school development all the more controversial. NIMBYism refers to the phenomenon of "not in my backyard". Many people have expectations that schools should not impact the amenities of their homes in terms of noise, views, traffic, and student numbers. For some, it matters not that the school existed first, and so these issues will be "weaponised" often through the planning system.

To decrease hostility, schools should engage transparently and meaningfully with the community to clearly and confidently assert a direction and create momentum towards executing their vision for the school. Opaque or contradictory messaging can generate community opposition, and therefore increase litigation risks.

Legal trends impacting development

At the same time as demand has grown, there has also been a growing litigiousness in NSW. We are seeing an increasing willingness of neighbours to employ "lawfare" for their own private agendas. In Sydney, an incursion into a view or other amenity impact might devalue a property by a million dollars, so landowners are willing to fund litigation. 

More and more enforcement action is being undertaken by the Department of Planning and other consent authorities enforcing development consents or other breaches of the planning regulatory framework. We have acted on a number of such enforcement matters, acting for schools or their contractors.

The planning system is not well geared to support people obtaining retrospective approvals for works after they have occurred. The system envisages people forward-planning and obtaining approval before undertaking construction work, and risks arise in trying to regularise works after the fact. 

Proceeding with development without consent will likely expose the school to unintentional legal risks and costs in an attempt to fix the problem. It may also change the dynamic of the relationship between the school and the community undermining its social licence. 

A vision

Ideally, schools have a long-term vision for what and how they want to develop their premises, so every time they want to expand or change aspects of the school, it fits into a larger strategy. 

If schools opt for piecemeal development, they should understand how the present focus fits into the bigger picture. Each application needs to navigate through the relevant planning law frameworks, which is time-consuming and complicated. 

Schools need to be aware of its existing approvals. A school may have a mosaic of development consents that apply to the land. Consideration of how approvals interact with each other is imperative, as schools need to know how the approvals impact their education vision. Having a register of approvals for each campus can be a useful document to help make sense of the approval history, and is a good step to ensuring compliance and identifying gaps. 

Schools influence the amenities of the local community (eg, traffic or noise) which can flow onto impact the school's relationship with neighbours. A carefully designed development and well-organised public consultation is one approach to disarm hostilities with neighbours. 

Notification and public consultation are enshrined and required for any development application under the Environmental Planning and Assessment Act 1979 (NSW). If the authorities fail to properly notify, neighbours may have a path to challenge the validity of any approval issued. Public participation is more than just a "speed bump" to get over, as various judgments of the Courts emphasise. 

Approval pathways

To execute the vision, a school needs to know the means to get there, and relevantly the approval pathways. In NSW there are four main pathways under Chapter Three of the State Environmental Planning Policy (Transport and Infrastructure) relevant to education facilities:

1. Exempt Development: When development consent is not required. These developments are permissible when the environmental impact is minor. 

2. Development without consent: This category of development involves work that is not exempt but also does not need development consent. For example, fences, fit-outs, and minor alterations to buildings. 

3. Complying Development: This pathway combines planning and construction approval for a straightforward development. For a certificate to be met, the precise requirements need to be met to avoid the certificate being challenged by the Court. 

4. State Significant Development Consent: this process involves extensive and formal community participation and is merit-assessed by the Department of Planning rather than a local council. State Significant Development applications are often required for fast pools, new ovals, and carparks.

Schools need to consider the development needed, relevant timeframes, costs and funding, and then work out the best pathway for the development proposed. 

Conclusion

Compliance with the broad suite of issues covered in our environmental and planning laws is increasingly becoming both more complex and more important for the reasons explained above. 

Schools should look to prepare a vision of the school that sits in harmony with the development constraints associated with each school site. Clear and confident communication of this vision to the school and local community, as part of a process that genuinely addresses public concerns can help mitigate legal risks and costs.