Q&A

We need to refocus the planning act on creating better places, on restoring community trust and on creating a more efficient, transparent and understandable planning system. The multi-layered existing act has proven to be inefficient, incomprehensible and opaque. But it is its multi-layered structure, SEPPs, REPs, LEPs and DCPs that creates the core problems that need replacement.

In the 40 years since the EP&A Act was created, we have moved into a digital age. The existing act was paper-based at conception and is still paper-based even though images of maps, etc are available on digital platforms such as the NSW Planning Portal, the NSW Legislation website and many council websites. However, much more information relevant to urban planning is available through digital platforms such as Geoscape, Nearmap, Google, etc. Additionally, new tools for urban planning will become available as we move to a fully digital lodgement of Development Applications. For example, it is easy to demonstrate aspects of overshadowing using 3-D modelling.

For 40 years we have applied band-aids to what was a complex piece of legislation making it ever more complex and difficult to interpret. However, the ultimate confusion caused by plastering over deficiencies with a plethora of additional layers has rendered parts of the existing act unworkable. Only specialist planners can advise in what areas residential aged care facilities may be built, whether development applications which breach height or floor space ratio provisions may be approved or in what zones medium density housing may be built. Under the current muddled and layered system, only specialist planners can advise on what uses are permitted on any site. It is time to construct a simpler system based on the outcomes we want rather than a process-oriented system indifferent to outcomes. We have investigated replacing sections of the EP&A Act but believe this is not feasible. Those sections dealing with EPIs are interlaced with administrative provisions and multi-layered references to other parts of the Act. In any case, the change from the current system to a new act will take some years during which both systems will need to function, even within individual LGAs. Integrating new provisions into the EP&A Act will be impossible while both systems apply.

We have been told of a small number of planning projects in which places and their DFCs were defined under the current act and used as a basis for development assessment. However, it is clear that these projects worked around planning obstructions rather than with the existing planning system. No attempt was made to make the process transparent or to provide better digital planning information. The projects are not claimed to have resulted in a systemic improvement in processing time or community participation. Our new act will improve the planning system in all of these areas. A Design and Place State Environmental Planning Policy is proposed for release in early 2021. However, this is just another regulatory layer and, like all the other SEPPs, cannot contribute to a planning system comprehensible to landowners, lawyers or the public at large.

Once the core of the Better Places Bill has been settled, a review of the existing legislation will be made to ascertain what provisions have not been incorporated. First, an assessment will be made as to whether those provisions are still necessary, given the overall objective of reducing excessive legal processes, and, secondly, whether they can be appropriately incorporated into the BPA, or should be included in other Acts or in a separate Act.

Complexity and contradiction in the current planning system feed delays and increase project risks. We are not aware of any comprehensive study of the statewide costs of project delays but it is highly likely that these costs will dwarf the cost of preparing and implementing a new and simpler act. The sooner we can simplify the existing planning system, the less will be the cost. The situation is comparable to the introduction of decimal currency (1966) or metric measurement (1973) where there were substantial costs but also lifetime cost savings.

For many years, the community has called for change to the system under which planning is carried out and approvals given. However, the complexities of the system have bewildered the community which feels there is insufficient consultation and a lack of correspondence between what the system promises and the outcomes achieved. Community expectations can be managed by the twin objectives of moving to an outcomes focused system reliant on the establishment of a Desired Future Character for areas, neighbourhoods and precincts. The introduction of third party appeals will keep the process honest. This is a view shared by the ICAC.

Community involvement in defining the DFC for places, within reasonable growth bounds set by State Government, has been proven to work (reference the former Warringah LEP 2000). Often community resistance to change is a reaction to either change imposed from above or is seen to benefit individual or group landowners at the expense of the community.

New ways of envisaging the built environment and assessing digitally based proposals will need to be learned by professional planners, architects and developers. The return for the additional investment in education necessary to implement the system will be greater focus on outcomes via neighbourhood or precinct Desired Future Character. This will be to the benefit of the community at large. Planners, architects and developers have always demonstrated concern for better outcomes. A a system focused on outcomes will lead to greater professional satisfaction. These sentiments have found expression in the recent publications of the NSW Government Architect, such as Better Placed.

Applicants of all types should experience a better process because it will be quicker, simpler and more predictable. DFCs and their planning controls will be couched in positive terms, specifying the outcomes wanted rather than protecting against undefined outcomes which are not wanted. This should make development approvals easier to obtain. However, where developments do not accord with their respective DFC, and there might be many good reasons for such applications, the proposals will be assessed in terms of the impact upon the whole place and not just a limited number of adjoining or nearby allotments.

A new Better Places act defining places and requiring consultations to define Desired Future Character for those places cannot be applied overnight. Both systems would need to be in place with the community or local government nominating those areas for which the new process would be applied preferentially. In time, say four years, all LGAs would be expected to have transitioned into the new system with those areas expecting significant change being priorities.

All development commences with a single land parcel or group of parcels. Having regard to the digital capability now available to define each land parcel and its associated characteristics, the parcel is the logical building block for a new system. Land parcels are the basic units for Geoscape Australia, the national digital survey of Australia being completed by PSMA Australia, a company created and owned by the Australian Government and the governments of the states and territories. Access is now available to a vast array of data collected by satellite and able to be interrogated, on a parcel by parcel, or even a more granular, basis.

Council staff, including planners, architects, landscape architects and social planners will team with and advise members of local communities to draft DFCs and the essential quantitative policies to facilitate the achievement of the outcomes sought. Councils will need to sign off on the agreed DFC for any area before sending the area definition and DFC to the Minister (or his delegate) for approval. Changes may be initiated by landowners, or their nominees, councils or the Minister.

For a development application that does not comply with a development policy, but reasonably could still be considered in accordance with the DFC of its place, consent can be given subject to an explicit statement of reasons. However, where a development application is not in accordance with the DFC of its place, an application will need to be initiated to amend the desired future character before any proposal may be approved. Applications to amend the DFC of a place will ultimately require Ministerial approval, much like a Planning Proposal does under today’s planning system. However, any proposal to amend the DFC and/or its controls will be assessed for its impact on the whole place in which it sits and not just with reference to adjoining or nearby allotments.

Our qualitative description of DFC will be accompanied by quantitative controls which may, depending on place, provide flexibility or not. Descriptions of Desired Future Character can envisage a physical outcome which can be described in quite specific design terms. In conservation areas, flexibility will, of necessity, be greatly limited. In greenfield places, considerable flexibility may be permitted. . For individual approvals, the exercise of discretion will be required to be explained having in mind that third party merit appeals will be permitted where the discretion does not appear reasonable or appropriate.

The definition of desired future character for precincts will be the joint project of local authorities and local communities. Such cooperation is not new, having been successful in Burwood about 15 years ago and in Warringah (as it then was) in the late 1990s. In both of those cases, community support for the location and definition of medium rise, high density apartment precincts was achieved. Additionally, the community will have the guarantee of third party appeals if it is felt that approvals are stepping outside the defined/agreed Desired Future Character.

It is likely that third party appeals will be pursued by some when the legislation is new but it is expected to reduce in volume once the first burst of cases is heard and the deterrent impact of possible court costs to the parties become obvious.

There is a strong suspicion in the community that a significant proportion of approvals are organised within a mateship system for reasons that are not transparent or that rely on the subjective opinion of a single assessor. Third party appeals would allow some interrogation of the approvals system, hopefully to reassure the community or, at the least, to confirm that decision making is not corrupt. Third party appeals have been a recommendation of the ICAC for some years. They are considered a necessary trade-off for the considerable widening of designers and planners’ discretion which is an essential part of the proposed new act.

The existing Act is based on layers of plans with no process or requirement to create a single place/parcel document. Further, there are many intertwined sections in the existing act, especially those that define EPIs and also the procedures for appointing determining authorities and their conduct. It seems to us that trying to integrate a wholly changed system into the existing act would be more complex than adopting a new legal ecosystem.

Decisions could be made by similar arrangements as now in place under the EP&A Act – in order they are NSW Independent Planning Commission, District Planning Panels, councils or their delegated officers or panels of officers within councils. Local Independent Hearing and Assessment Panels would be advisory. All decisions would be subject to third party appeals.

A Better Places Panel will review place definitions and DFCs and policies and the adequacy of the community involvement which gave rise to them. The Panel will make recommendations to the Minister who is the authority for the creation or amendment of DFCs and their insertion into the land parcel records.