In brief - Recent comments from the NSW Government suggest that the NSW planning system is moving towards a system "based on principles rather than prescription". However, the recent introduction of "9 new planning principles", the consolidation of the State Environmental Planning Policies, and the new Environmental Planning and Assessment Regulation 2021, require considerably more work to achieve this aim. 

This article looks at the move towards a principles-based approach in light of these three new changes. 

Moving towards a principles-based approach in NSW planning law

Since the introduction of the Environmental Planning and Assessment Act 1979 (NSW) (Act), there has been a proliferation in both "hard law" and "soft law" governing planning and environmental issues. 

The length of complexity of the Act itself has grown, as well as the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation 2000). Numerous environmental planning instruments sit beneath the Act. And beyond legislation, various guidance documents of specialist agencies and government departments also play a significant role in this area of law (well-known examples are the Apartment Design Guide, and Planning for Bushfire Protection). 

The former Minister for Planning and Public Spaces, Rob Stokes MP, commented in September 2020 that: 

Over the past five years, we have been focussed on reforming the planning system to be more strategic and one based on principles rather than prescription; one that encourages a far more collaborative approach with all layers of government contributing to more positive outcomes for the community. (emphasis added).

The above comments also echo similar extra-curial statements of the retiring Chief Justice Bathurst in 2015 who in answering the question why is Australia plagued with long and complex legislation answered that it was because of the use of prescriptive, rather than principled drafting techniques.

In 2018, the Chief Judge of the Federal Court, Justice Allsop, expressed it this way:

[there] comes a point where the human character of the narrative fails, where its moral purpose is lost in a thicket of definitions, exceptions and inclusions

In commenting on the "need for the law to be accessible in its coherence and writing", Allsop CJ also stated:

We live, at least with much Commonwealth legislation, in an age of detailed deconstructionism, of rampant reductionism. The elemental particularisation of modern day legislation – its deconstructionist form, sometimes arranged more like a computer program than a narrative in language to be read from beginning to end – reflects a modern cast of mind intent on particularity, definition and taxonomical structure, that is scientific only in a mechanical Newtonian sense.

Like these other areas of law, the trend since the introduction of the EP&A Act in 1979 has been towards the more "Newtonian" particularisation of legislation rather than a principles-based approach. These increasing particularised rules cut across the aim of making law accessible, which has problems in planning and environmental law given the impact this system has on the everyday lives of the NSW community, from individuals and families, through to large businesses. It is the planning system that leads to basic questions such as: can I use my land in a particular way; during what hours or days; under what conditions?

Additional complexity is also created through the mix of "hard" and "soft" law in the NSW planning system. There are numerous examples of soft law (e.g. guidelines, local government policies, and standards) "hardening" to have the character of legislation in the NSW planning system, often because due to the legislation making these documents mandatory relevant considerations in planning decisions.1 

The overlap and volume of hard and soft law creates difficulties for ordinary people, but also sophisticated developers and businesses, and often benefits public authorities,2  leading to not so irregular appeals to the NSW Court of Appeal, special leave applications to the High Court, and even High Court cases.

Three new reforms in NSW planning law

Aiming to "to make the system simpler", three announcements were made just before Minister Stokes' period as the Minister for Planning ended last year: 

  1. The Minister's Planning Principles: A Plan for Sustainable Development was released.

  2. The consolidation and review of the existing State Environmental Planning Policies (SEPPs).

  3. The replacement of the EP&A Regulation 2000 with the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation 2021), set to commence on 1 March 2022. 

However, the consolidation of SEPPs and the replacement of the EP&A Regulation when properly considered has done little to reduce the current complexity, and the creation of new Planning Principles has the potential to confound the structure of rules that have developed.

New NSW planning principles

It is possible that the nine new planning principles released by the former Minister for Planning in late 2021 will create new ambiguities for those interfacing with the relevant planning authorities. The principles are:

  1. Planning systems — A strategic and inclusive planning system for the community and the environment;

  2. Design and place — Delivering well-designed places that enhance quality of life, the environment and the economy;

  3. Biodiversity and conservation — Preserving, conserving and managing NSW's natural environment and heritage;

  4. Resilience and hazards — Managing risks and building resilience in the face of hazards;

  5. Transport and infrastructure — Providing well-designed and located transport and infrastructure integrated with land use;

  6. Housing — Delivering a sufficient supply of safe, diverse and affordable housing;

  7. Industry and employment — Growing a competitive and resilient economy that is adaptive, innovative and delivers jobs;

  8. Resources and energy — Promoting the sustainable use of NSW's resources and transitioning to renewable energy;

  9. Primary production — Protecting and supporting agricultural lands and opportunities for primary production.

These Planning Principles will have legal effect as a result of Direction 1.1 of the Local Planning Directions due to commence on 1 March 2022. Planning authorities will be required to consider these Planning Principles in Part 3 rezoning processes. However, it would also not be surprising to see these Planning Principles being given a de facto role in the assessment process of development applications by assessment officers within consent authorities, adding another layer of considerations to what is already an arduous process.3  

There are risks to efficiency and certainty if the principles are used by planning authorities in an opaque and subjective manner, slowing momentum. As Allsop CJ's 2018 paper noted:

There is an important balance to be struck in this respect. Legal systems and societies cannot be built or sustained by reference only to generally expressed values. Neither, however, can they be built upon a myriad of strict, textually expressed rules alone…The balance must also recognise the need for a coherent structure of rules, the absence of which may confound law by a drift into a formless void of sentiment and intuition.

Whilst the aims behind the Planning Principles are laudable, these principles need to be coupled with cultural change across the various authorities overseeing and implementing the EP&A Act to improve the community's navigation through the planning system and to avoid any drift into a "void of sentiment and intuition". 

Other reforms commencing on 1 March 2022 - consolidation of SEPPs and replacement of the EP&A Regulation 

Commencing on 1 March 2022, 43 existing SEPPs will be consolidated into 11 new SEPPs:

  1. State Environmental Planning Policy (Biodiversity and Conservation) 2021;

  2. State Environmental Planning Policy (Industry and Employment) 2021;

  3. State Environmental Planning Policy (Planning Systems) 2021;

  4. State Environmental Planning Policy (Precincts—Central River City) 2021;

  5. State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021;

  6. State Environmental Planning Policy (Precincts—Regional) 2021;

  7. State Environmental Planning Policy (Precincts—Western Parkland City) 2021;

  8. State Environmental Planning Policy (Primary Production) 2021;

  9. State Environmental Planning Policy (Resilience and Hazards) 2021;

  10. State Environmental Planning Policy (Resources and Energy) 2021; and

  11. State Environmental Planning Policy (Transport and Infrastructure) 2021.

The much used State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 will remain as a standalone SEPP.

However, despite the much cited mantra of change being needed to support a "simpler, better and more transparent" planning system, the consolidation of SEPPs in and of itself does nothing to reduce the complexity and volume of law governing development. The existing 43 SEPPs have simply been rationalised into 11 new SEPPs. Another significant change is the removal of some savings and transitional provisions. 

In relation to the new EP&A Regulation 2021 set to commence on 1 March 2022, whilst the changes are mostly modest, there are also some substantive changes to the process for amending development applications and modification applications, deemed refusal and stop the clock calculations, which in turn impact appeal rights to the Land and Environment Court NSW. 

Whilst it may seem trivial, the clause numbering will also change meaning the language and common understandings that has developed over the last 20 years will need to be retrained for those who deal with the EP&A Regulation on a day-to-day basis, e.g. clause 55 (amendment to a development application) will now be contained in clause 37 in relation to development applications, and clause 113 for modification applications. If the experience with the decimalisation of the EP&A Act on 1 March 2018 is anything to go by, the loss of corporate knowledge built up based on particular clauses will continue to cause frustration for the foreseeable future. 

It remains to be seen whether these reforms will achieve their aims, one of which was to "[reduce] administrative burden and complexity in development assessment processes". However, we anticipate there will be teething problems at the very least.

Where to for NSW?

Inefficient and uncertain planning and assessment processes are a barrier to development within the state and therefore economic development and productivity. Capital is lazy and the competition for money means it will be invested in jurisdictions where there is less resistance. 

Whilst the NSW planning reforms over the last five years have been built on a philosophy of "evolution not revolution" (in contradistinction to the failed 2013 reforms),  sometimes a step change is needed where assessment processes become protracted or where there are difficulties in consent authorities balancing the competing aims of economic development and local environmental outcomes.

The system needs to balance the state's imperatives, community expectations, the local and sometimes very parochial impacts of development, the environment, the voice of Indigenous Australians, transparency, commercial confidence and development. A different balance will apply to different development projects and the system needs to be agile to accommodate that. 

Overall our day-to-day experience suggests the system needs further refinement to create the above. Whilst the new Minister for Planning and Homes, Anthony Roberts MP, has tackled substantive new strata development reforms in the past, it is too soon to say whether more substantive reforms will be tackled to improve NSW's standings as the NSW economy re-emerges following the pandemic.

Update: On 14 March 2022, Minister for Planning and Homes, Anthony Roberts MP, discontinued the Minister's Planning Principles introduced by former Minister, the Hon Rob Stokes. Read the Ministerial Statement.

END NOTES
1. One example of this is section 89(1)(b) of the Local Government Act 1993 (NSW) which provides: "In determining an application, a council—… must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application" (Emphasis added).
2. See page 21, Weeks, G and Pearson, L, Planning and Soft Law (2017) 24 Australian Journal of Administrative Law, at: https://ssrn.com/abstract=3059492 
3. This might occur through the mandatory consideration in section 4.15(1)(e) of the EP&A Act, requiring consideration of the "public interest", which can involve the consideration of a wide range of policies.

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 2022.

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