HOW IT WILL WORK

Existing EP&A Act Designed to use zoning to comprehensively separate land uses. Additional zoning paper maps have layered zones for other aspects of design – heights, floor space, lot sizes, etc. Design outcomes may be dealt with in a DCP, which not being a regulation, is considered to have less weight than statutory zoning controls and may be overridden by the standard development controls that are not based on overriding place and design objectives. Reform Proposal Instead of place and design objectives being the lowest in the stack of standard control regulations, they will be the overarching control objectives supported by quantitative policies that will guide designers and assessors in how to achieve those objectives. Some leeway in interpreting how applications fit the DFCs will be required, particularly where applications may be outside the anticipated forms of development. However, by referencing the relevant DFC, we expect that predictable decisions will achieved.

Existing EP&A Act The legislation is designed to have separate layers of control mechanisms – SEPPs, REPs, LEPs and DCPs. Each layer is initiated and made by different processes and there is no obligation to make specific amendments to existing controls. For example, the first SEPP effectively amended every LEP without explicitly altering the text of any. The current digital cadastral data system can only refer inquirers to the layers of paper based control documents; it does not provide an authoritative and integrated record of the controls applying to each parcel. Reform Proposal Create a single digital document for each land parcel by integrating all control policies into a single record in a State Digital Cadastral Data Base (DCDB): Firstly, by allowing State and local government bodies and landowners to initiate amendments to the document; and, secondly, by requiring any amendment to alter the document rather than layering changes. In many respects, the process will be similar to the current Planning Proposal system except that amendments will be evaluated in terms of impact on the whole place to which a DFC applies, be that small precinct or whole suburb. Ultimate reference will be to a Better Places Management Panel and thence the Minister.

Existing EP&A Act Layers of control documents and codes driven by the policy objective of standardising controls across the State leave little freedom for designers to tailor their designs to particular places and the needs of particular markets. Consequently developers seldom market good design, rather merely offer size and price advantages, with design choice essentially limited to the design of facades. Reform proposal The single document of controls applying to each parcel provides the opportunity to write controls that reflect the design objectives for that allotment, not necessarily limiting the means to achieve those objectives. The objectives can be written as a qualitative statement of the Desired Future Character. The quantitative policies which provide guidance to designers in how to achieve the relevant DFC will be the least necessary to do the job, leaving the designer and client the opportunity to tailor a design that best achieves the needs of the market and the DFC. Designers will be a term defined in the act but may include architects, urban designers, building designers and other professionals who have qualified for inclusion. This is not unlike the requirements of SEPP 65 for architects to design apartment buildings or planners to prepare EISs.

Existing EP&A Act The drafting of controls is based on State-wide zones for different aspects of design, each with their own objectives, which are often circular. These are not integrated place design objectives. They are design objectives designed to make everywhere look the same. Reform proposal DFCs can facilitate the creation of excellent places as well as reduce the work required to prepare DFCs and quantitative controls for individual parcels. Places are not jurisdictions but are collections of parcels with similar geographies, development patterns and social roles. The selection of place boundaries could be to celebrate differences or, in furtherance of a policy objective, to encourage consistent change. The selection of place boundaries as well as the wording of DFCs will be affected by policy outcomes and community involvement.

Existing EP&A Act Consultation is limited. Essentially it consists of commenting on draft zoning documents based on layers of standard State-wide zoning regulations. It is responsive participation with little scope for change. Negative community response can occur. Reform proposal That local community working parties work with advisors and facilitators in identifying different local places and, within the scope of a brief from local and State strategic planners, draft the DFCs for each of the places together with the quantitative policies that will facilitate the achievement of those place objectives. Once the working parties have completed their work it can be exhibited and those who have issues of concern can be invited to workshops to resolve those concerns. This methodology was successfully used by council and the community to prepare the Warringah LEP 2000 under the direction of John Mant.

Existing EP&A Act Planning controls, except for DCPs, are regulations rather than policy guides to the exercise of a merit assessment. The operation of the system tends to be legalistic, with every control having to be addressed even if not relevant to the decisions to be taken. Refusals can be made on the basis of minimum breaches of standards. Because of their legal status, controls where there are only minor breaches may need amendments to the statutory document requiring the costly Planning Proposal process or the legally cumbersome clause 4.6 submission. Reform proposal Control to be imposed by the main legislation, instead of by individual regulation. If ‘everything is subject to consent’, controls become qualitative with quantitative policies assisting merit assessment decisions rather than rules to be enforced. Effectively the qualitative policies will list developments to be encouraged, on merit, or not encouraged. Where a development is not encouraged, approval still can be given if it is judged the development nonetheless complies with or enhances the DFC. In any event, compliance with the DFC is always required. Applications to amend the wording of the DFC and, if necessary, the assessment policies, can be made by a process similar to existing Planning Proposals.

Existing EP&A Act Third party merit appeals, which the ICAC has consistently identified as the most effective means of fighting corruption in the planning system, are limited to major polluting developments – those that have been ‘designated’. The absence of third party merit appeals leaves objectors to planning decisions with only administrative challenges commonly based on alleged procedural errors or statutory interpretation. These are expensive, involve council insurers and do not deal with underlying merit issues. The threat of such challenges tends to make administrators risk adverse, which, when combined with the complexity of procedures and controls, can lead to administrative delay and cost and a reluctance to exercise merit judgements. Reform proposal Provide general Third Party Merit Appeals. To discourage unmeritorious appeals designed to cause delay, provide discretion for the Court to order costs and/or damages.

Existing EP&A Act In spite of the myriad rules and planning overlays, development applications are still dogged by uncertainty. Developers and applicants enter the development assessment process with no certainty of outcome, even if meeting all the rules. Reform proposal By having a desired future character for every place, applicants and developers will know what objectives need to be met and what exactly is wanted rather than leaving them to guess. The result should be greater certainty of development application outcomes.

Existing EP&A Act Although conciliation is encouraged, the hearing proceedings are adversarial with opposing advocates presenting their cases before the court which then adjudicates on what is put before it. The system does not take advantage of the many well credentialled architects and urban planners who have been appointed Commissioners. Hearings tend to be dominated by lawyers, often presenting complex issues for decision. As a consequence, hearings can be lengthy and expensive. Reform proposal In view of the proposed shift from the application of regulations to merit assessment based on DFCs, appeals against approval decisions should shift from adversarial to inquisitorial proceedings. In an inquisitorial hearing, the court plays a more active role in determining the issues to be dealt with and the evidence to be presented. This would represent a much more efficacious use of the experience and expertise of the Commissioners. Further, recognising there will be a transition period of four or more years,where both systems will need to apply.