In brief - Government sets agenda for overhauling NSW planning system 

The Green Paper identifies four key areas of planning reform: community participation, strategic focus, streamlined assessment and provision of infrastructure.

Green Paper responds to independent review of NSW planning system

On 14 July 2012, the NSW government released its long awaited blueprint for planning reform in NSW: A New Planning System for New South Wales – Green Paper. The document sets out a comprehensive agenda for overhauling the NSW planning system which, according to the government, is mired in complexity, overly regulated, unacceptably politicised and focused on process rather than outcome.

The Green Paper is the government’s initial response to the recommendations of the Independent Review of the NSW Planning System that commenced in July 2011 and was led by The Hon Tim Moore and The Hon Ron Dyer.

At a broad level, the Green Paper focuses on four key areas of reform – community participation, strategic focus, streamlined assessment and provision of infrastructure. The Green Paper goes on to introduce some 23 "transformative changes" which, through further consultation, will form the basis of the new draft legislation, due out in early 2013.

Some of the key transformative changes are summarised below.

Greater emphasis on community consultation and participation

There will be greater emphasis on community consultation and participation during the strategic planning stage of the process, with the aim of reducing community consultation (and disputation) at the assessment stage.

This policy initiative will be supported by the adoption of a "Public Participation Charter" which, when implemented, will require that community consultation occurs in the early stages of the plan making process. The charter will set minimum standards and also encourage innovation and best practice in consultation techniques.

Abolition of Local Environmental Plans and Development Control Plans 

These will be replaced over time by various planning hierarchies, including the introduction of "Local Use Plans". LUPs will be structured differently to LEPs.

In short, LUPs will comprise four key parts, including a strategic section, a statutory spatial land use plan, a section on infrastructure and services and a section on development guidelines and performance monitoring requirements. The statutory spatial land use plan will contain the bulk of what is currently found in the comprehensive LEPs, including zonings.

Scrapping of State Environmental Planning Policies and Section 117 Directions

These will be replaced by around 10 Ministerial Directives. The Green Paper also proposes switching off concurrences and referrals. The government has, in part, commenced the process of eliminating concurrent authorities and has pledged to continue this process.

Expanding the scope of complying development 

The government will look at expanding the codes to new industrial buildings on industrial land, additions to industrial buildings, additions to existing commercial buildings, townhouses, terrace housing and villas and housing on smaller lots. The government is also considering introducing a new mechanism that would allow for the consideration of variations from the standards for an otherwise compliant house.

Creation of new suburban character zones 

The creation of new suburban character zones will enable local councils to decide to limit development in specific areas.

Creation of new enterprise zones 

These will be zones where a range of development can take place. While it is principally designed to stimulate employment-generating development, there will be some flexibility to allow for other compatible uses.

Planning Assessment Commission (PAC) and Joint Regional Planning Panels (JRPPs) 

The role of the PAC and the JRPPs will be maintained in decisions on developments that are state and regionally significant.

At a local level, the Green Paper is contemplating a requirement that councils appoint expert panels (such as Independent Hearing and Assessment Panels) and delegate local decision making to those panels, with the aim of depoliticising the assessment process.

Expanding the review roles of the PAC and JRPPs 

The Green Paper proposes to expand the review roles of the PAC and JRPPs to include pre-gateway reviews where a consent authority refuses or delays the preparation of a planning proposal; gateway reviews where the council or the proponent do not agree with the gateway determination and, significantly, rezoning proposals that have not been approved.

Introduction of an "amber light" notification regime 

The effect of an "amber light" notification regime would be to permit a consent authority which has determined to refuse a development application to allow the developer to make certain modifications to the development prior to the determination, which would render the application acceptable for approval.

Need for fundamental change in delivery culture 

The initiatives proposed by the NSW government are unquestionably bold in their aims and, when implemented, will significantly change the way that development is procured in NSW.

What is even more important than the government's transformative proposals, as outlined in the Green Paper, is a fundamental change in the "delivery culture" related to the implementation of development in NSW. Only this will facilitate true reform in the four key areas of community participation, strategic focus, streamlined assessment and provision of infrastructure that the Green Paper has identified.

The government has acknowledged that significant further work needs to be carried out before the publication of the White Paper and the release of the accompanying Exposure Bill early next year. The devil, of course, will be in the detail.

Government calls for a response to the proposals in the Green Paper 

The government has called for feedback on the proposals set out in the Green Paper during the exhibition period, which ends on 14 September 2012. We welcome you to raise any points related to the Green Paper with us so that we can include them in any submission we lodge.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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