Can the NSW planning system change its spots?


The NSW Government has released the long awaited White Paper on its proposed new planning system.

Over the last decade, NSW has slipped significantly in the housing affordability and housing release rankings against other States and Territories.  The complexity of the Environmental Planning and Assessment Act, 1979 has drawn criticism from developers and the community alike and has been blamed for the current State budgetary constraints, with Treasury coffers suffering from depleted stamp duty revenues over many years and proponents blaming the planning system for their decisions to move out of or avoid NSW.  

There is universal acknowledgement that the system is broken and needs to be fixed and without the application of band aids.

Submissions on the Government’s Green Paper on Planning identified lack of certainty, assessment delays and lack of transparency as some of the key areas for reform.  The Government’s challenge is to bridge the gap between the expectations of communities for a greater say in planning decisions, stronger environmental conservation controls and retention of neighbourhood character, versus the development industry which demands a simpler, cheaper and more transparent system. 

Stretching to 214 pages, the NSW White Paper on a New Planning System for NSW evidences a thoughtful and thorough assessment of the current regime against more than 1200 Green Paper public submissions.  The White Paper is also accompanied by exposure drafts of the Planning Administration Bill 2013 and the Planning Bill 2013.

Happily, the toolbox provided in the White Paper contains all the right equipment to address the shortcomings and complexities of the current system.  However, the credibility and success of the new legislation depends in large part on the Government dedicating both financial and time resources required to address the capacity and cultural change issues within local government.  Furthermore, the Government must consistently demonstrate that it will stand behind its reforms by exercising its enforcement powers and diligently pushing through the unpopular elements of the reforms to ensure the new system is fair for all stakeholders. 

In February 2013 the Government announced $465.7 million in funding over 5 years to support the Government’s new waste management strategy.  Transformation of the NSW planning system deserves a similar kind of long-term funding commitment to underpin its success.

Best practice systems have been sourced in developing the White Paper.  This includes the proposed Community Participation Charter which underpins one of the most critical elements of the new system, namely the front-ending of high levels of community involvement in strategic planning, reducing to significantly lower levels during development assessment phase, as around 80% of development is targeted for approval as complying or code assessed development within 5 years.

Acknowledging the importance of proper resourcing, the White Paper proposes that the Government will consult with local government and stakeholders “including the reallocation of resources across government...”.

Certainly a reallocation of resources will be necessary at the get-go in the integrated development space, where the Department of Planning and Infrastructure will establish a “one stop shop”.  This is intended to facilitate consistency in approval conditions and deliver concurrences and ancillary approvals on behalf of other Government agencies.  This reform will be welcomed.

Another game-changing initiative is the proposed e-planning portal, allowing councils and the community the ability to access spatial data from their desktops, a key enabler in the virtual interactions that will be necessary to ensure the success of the early community participation model in strategic planning.  This will require funding above a mere re-allocation of existing agency resources.

The critical cultural change ambitions contained in the White Paper will require the Minister and his Director-General to have immediate access to significant resources to reset the system on a path to success before old habits re‑establish.

In the 2013 Marla Pearlman Address, the Honourable Paul Stein, AM, QC acknowledged that: “getting the general public to meaningfully participate at the plan-making stage is a very, very big ask...... laudable as the proposal is, it is doomed to failure unless very significant resources are invested in it.”

Specialist skills will be needed in drafting the Department of Planning and Infrastructure’s proposed model guidelines in community participation to establish best practice, not only in the Department’s own strategic planning initiatives but, importantly, for adoption by local councils.  A “train the trainer” regime will be needed to build capability in local councils, many of which are already severely resource constrained.

Well before release of the Green Paper, the Government made clear that local government reform was not to be an element of the planning system review.  It is a pity that this opportunity was missed because in the absence of root and branch reform to consolidate and rationalise local government resources, it will fall to the State Government to plug the gaps.

The culture change across all levels of government contemplated by the White Paper is intended to be a foundation of the new system.  To achieve the necessary degree of change across multiple agencies as well as the separately-administered layer of (local) government will require not only a forward funding package, but a persistent focus on measurable outcomes. 

Sensibly, the White Paper anticipates that most systems and processes will be more rigorously and regularly monitored than has been the case in the past.  However, one of the fundamentals of successful cultural change is that outlying behaviours (such as local councils which regularly ignore their staff’s recommendations) are “called” early and openly.

The unwritten aspect of the reforms is the frequency and strength with which the Government will tackle behaviours that put at risk the success that the new legislation is capable of delivering for the State.

An effective enforcement regime will also require a skilled and well resourced Department to administer and guide the Government’s policy ambitions to maturity.

The end game is more than a consistent upward trajectory in the construction of new dwellings in NSW, it’s a step change in public perception so that NSW is recognised as being back on the map for economic investment of all kinds.   The Government needs to give itself the best chance of achieving this by linking arms and standing behind its reforms for as long as it takes to bed them into the State’s fabric.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Christine Covington

Partner. Sydney
+61 2 9210 6428


Louise Camenzuli

Partner. Sydney
+61 2 9210 6621