By Aaron Gadiel, Partner

The never-ending process of ‘reforming’ the NSW planning law continues. The latest changes come into effect today (10 December 2018) — affecting the new local strategic planning statement regime and the powers/membership of the Greater Sydney Commission.

The changes are being implemented via amendments to the Environmental Planning and Assessment Act 1979 and the Greater Sydney Commission Act 2015.

A brief explanation of the main changes is set out below.

Greater Sydney Commission stripped of its rezoning role

In early 2016, the NSW Government legislated to remove the Planning Minister’s power to make key decisions in the routine process for amending local environmental plans in the Sydney metropolitan area.

The Minister’s powers to issue gateway determinations, decide who can submit planning proposals (to change planning controls), etc were handed over to the new Greater Sydney Commission.

This radical reform was wound back somewhat on 1 March 2018. The Minister’s Sydney rezoning powers were largely re-instated, but the Greater Sydney Commission’s powers were also retained.  As a result, since March, the Greater Sydney Commission and the Planning Minister have shared responsibility for the actual statutory land use planning controls in Sydney.

However, as result of the latest legislation, the Greater Sydney Commission has now been completely stripped of any substantive role in determining actual statutory land use planning controls.  (The Commission retains a right to be consulted by the Minister regarding changes to actual planning controls in limited circumstances.  It is likely that this consultation role will rarely be triggered.)

In short:

• The first two years of the Greater Sydney Commission’s existence was an experiment.
• Responsibility for Sydney’s actual statutory planning controls was handed over to an independent technocratic body.
• The experiment has apparently not been judged a success by the NSW Government. It was substantially wound back on 1 March 2018.
• The latest legislation commencing today (10 December 2018) brings the experiment to an end.

The Greater Sydney Commission retains an indirect role in the process of determining planning controls. This is because the Commission is still responsible for:

• preparing updates for (and the eventual replacement of) the ‘A Metropolis of Three Cities – The Greater Sydney Region Plan’ for consideration by the Planning Minister;
• updating, reviewing and finalising district plans for each of Sydney’s five districts; and
• approving local strategic planning statements prepared by local councils (see below).

None of these documents necessarily result in any changes to actual planning controls. However, any planning proposals to change actual controls in local environmental plans must:

• give effect to the district plans; and
• take the relevant local strategic planning statement into consideration.

This means that the work of the Greater Sydney Commission remains important. Its decisions will influence local councils, planning panels and the Planning Minister when it actual planning controls are reviewed, updated and replaced.

Greater Sydney Commission composition re-jigged

When the Greater Sydney Commission launched in January 2016 it was made up of:

• the chief commissioner, an environmental commissioner, a social commissioner and an economic commissioner;
• six district commissioners, who were each appointed to represent one of Sydney’s (then) six districts; and
• the departmental heads for planning, transport and treasury.

This composition reflected an overall balance between potentially competing local interests and city-wide interests. There were seven state government appointees and six district representatives.  (As a matter of policy, the district representatives are selected in collaboration with local councils.)  The state government nominees were in a majority, but only by one.

As a result of the latest legislative changes, the membership of the Greater Sydney Commission has now significantly changed.

There is still a chief commissioner (Lucy Turnbull) and three ‘Greater Sydney commissioners’ — being Geoff Roberts (economic commissioner), Roderick Simpson (environment commissioner) and Helen O’Loughlin (social commissioner).

However, there are now only four district commissioners (down from the original six).  These are: Elizabeth Dibbs (for the ‘Western City’); Peter Poulet (for the ‘Central City’); Deborah Dearing (for the ‘Eastern City’ and ‘Sydney North’) and Morris Iemma (for ‘Sydney South’).

Significantly, the number of full-time state public servants sitting as members of the Commission has been expanded from three to five.  The departmental heads of planning, transport and treasury have been joined by the head of the Department of Premier and Cabinet and the chief executive officer of the Commission.

In short, the Commission is still made up 13 members. However, nine of the members are now appointed by the state government without local council involvement.  Only four of the members (less than one-third) are district representatives selected in collaboration with local councils.

Local strategic planning statements

Until 1 March 2018, there were five layers of statutory land use planning documents in Sydney. These were:

• state environmental planning policies;
• regional strategic plans;
• district plans;
• local environmental plans; and
• development control plans.

Outside of Sydney there were four layers of statutory land use planning documents (the same list as above, but without the district plans).

However, since March, the state’s planning laws require an additional layer. This new type of document is a ‘local strategic planning statement’.  This document will be prepared and adopted by each local council.  It must set out planning priorities and actions within each local council area.

When a council is divided into wards — and the statement separately deals with each ward — the local councillors for that ward will be able to veto any statement that they do not like. There is a provision for a state agency to step-in and override the veto of the ward councillors, but this can only be done at the request of the local council itself.

The local strategic planning statement will not be the legal document that sets out the formal zoning of land and what is permitted and prohibited in each area. This role still rests with local environmental plans.

However, the new planning laws require any planning proposal (for a change in planning controls) to address whether the proposal will give effect to the local strategic planning statement. This is a relatively soft obligation.  A planning proposal can still proceed even if it is inconsistent with the local strategic planning statement — as long as that inconsistency is justified.  This contrasts with the requirement that every planning proposal, to proceed, must give effect to a district plan (or if there is no district plan — the regional strategic plan).

Sydney councils are obliged to finalise their statements before 1 December 2019 (with exhibition of drafts to take place before 1 July 2019). Local councils outside of Sydney have until 1 July 2020 to finalise their statements.

When the new requirement for local strategic planning statements was introduced, two key criticisms were commonly voiced.

Firstly, these statements are another layer in an already complex land use planning system.  The additional bureaucratic and legal steps (that must now be followed) are likely to make it more difficult to introduce contemporary planning controls.

Secondly, the legislation introduced in March did not give the state government any role in approving the local strategic planning statements.  This opened up the possibility that the statements may undermine regional and state level planning goals.

As a result of the latest legislative changes, Sydney local councils cannot finalise their strategic planning statements without the agreement of the Greater Sydney Commission.  This appears to be an attempt to respond to the second criticism (nothing has been done about the first).

However, local councils are not required to obtain the support of the Greater Sydney Commission prior to the exhibition of draft local strategic planning statements.  This might mean that the Commission will be ‘cornered’ by local councils.  Local councils may publicly exhibit a draft statement and present it to the Commission as a fait accompli.  This is likely to limit the scope of any changes the Commission might request.  (It is possible that the Planning Secretary will address this problem by issuing legally binding ‘requirements’ in the future.  However, so far no such requirements have been issued, only non-binding ‘guidelines’.)

The new legislation does not provide an easy process for resolving any deadlock between local councils and the Greater Sydney Commission. For example, there is no ‘step-in’ power for the Commission to finalise a local strategic planning statement when there is disagreement.  This means that the Greater Sydney Commission will be under pressure to agree to local council statements — because if there is no agreement the dispute may continue indefinitely.

(In theory, the Planning Minister and the Local Government Minister can agree to appoint a planning administrator to finalise a local strategic planning statement in such circumstances. However, the appointment of a planning administrator is generally viewed as an extreme step.  Such action is likely to be avoided by the NSW Government.)

Local councils outside of Sydney do not face any new oversight from the state government when preparing their local strategic planning statements.

Delay in the next review of the Greater Sydney Region Plan

The next mandatory statutory review of the ‘A Metropolis of Three Cities – The Greater Sydney Region Plan’ has been postponed by one year to 2023 (rather than the previously designated 2022).

More changes to come?

This is unlikely to be the end of changes to the state’s planning laws. The latest legislative reforms are the sixth package of changes in the last four years.

An election is due in March 2019. The new (opposition) Labor planning spokesperson, Tania Mihailuk, is critical of the scope of government’s legislative reforms to date.  Ms Mihailuk told the Sunday Telegraph on 9 December 2018 that ‘The Liberals have had ample opportunity to reform the planning system … at best they’ve tinkered around the edges while opening the floodgates to rampant overdevelopment in many parts of Sydney.’

This suggests that a change of government will mean more legislative changes.

If the current government is re-elected, it is committed to significant changes to the regime governing construction certificates, occupation certificates and subdivision certificates. A new regime is due to commence on 1 September 2019 and the legislative detail is yet to be released.

Need to know more?

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