REDWatch Submission on A New Planning System for NSW
Thank you for the opportunity to
comment on the New Planning System White Paper and the Draft Legislation.
REDWatch is a residents’ group
that covers the inner-city suburbs of Redfern, Waterloo, Eveleigh and
Darlington. In this area we have had planning experience in dealing with the
City of Sydney Council and the State Government interventions associated with
the Redfern Waterloo Authority and its successors the Sydney Metropolitan
Development Authority and UrbanGrowth Development Corporation. Members have
experience from ongoing dialogue with Government including on Ministerial
Advisory Committees.
Based on our experience of
dealing with both local government and state planning mechanisms we would like
to make some comments on the White Paper.
[Use the Contents list shortcuts below to go directly to a section of the submission]
Contents
Chapter 2 – The New
Planning System and Objectives. 4
Ecologically Sustainable
Development (ESD) 4
Chapter 3 – Delivery
Culture. 6
Problems from Conflicting
Planning Objectives. 6
Listen to Local Communities. 6
Lack of will to implement
plans. 7
Judicial Review &
Corruption Prevention. 8
Chapter 4 – Community
Participation. 8
Undermining Community
Participation. 12
Chapter 5 – Strategic
Planning Framework. 14
Strategic Planning
Principles. 15
Making, amending or repealing plans. 18
Subregional Delivery
Plans. 19
Chapter 6 – Development
Assessment 22
State Significant Development 27
Environmental Impact
Assessment 28
Judicial review and
merit-based appeal rights. 28
Streamlining referrals
and concurrences. 29
Chapter 7 – Provision of
Infrastructure. 30
Biodiversity offset contributions. 32
Housing Affordability and Affordable Housing. 32
Chapter 8 – Building
Regulation and Certification. 33
Overview
Many areas of the New Planning
System are unclear. One of the first tasks in making a submission is to
understand the actual proposal. REDWatch would have preferred the Government to
have only released the White Paper for discussion. This would have led to a
discussion of principle. When finalised, the outcome could have been reflected
into legislation and there could have been debate about if it adequately
reflected the White Paper outcomes.
However by releasing the White
Paper and the Draft Legislation what was proposed became much less clear in
part because there were differences between the White Paper and Draft
Legislation around key issues.
To get a full picture we then
needed the regulations, the draft codes and policies to a proper understanding
of how many issues of concern would be handled under the Draft Legislation. There
were also no details about proposed transition arrangements. Put all together
there is little certainty as to how the New Planning System will impact on a
range of important concerns.
In such a situation we would
have fallen back on the White Paper as a statement of intent, however with the
White Paper and the Draft Legislation in conflict this was not possible.
It is of concern to REDWatch
that it has not been possible to get the Department or the Minister to clarify
a range of issues. In some cases these include denial that the Draft
Legislation and the White Paper do not agree. In others it has been a failure
to frankly acknowledge or even discuss the impact of changes like that from
Ecologically Sustainable Development (ESD) to Sustainable Development (SD) or
how the changes will impact both built and Aboriginal heritage.
The inability to address such
issues at information sessions, in meetings with senior departmental officials
and with the Minister leaves REDWatch with little confidence in both the stated
intent of the White Paper and the Government’s preparedness to make changes to
what has been proposed in the Legislation.
REDWatch remains concerned that
the White Paper does not deal with the vast bulk of the 374 recommendations of
the independent panel and in many places goes against these recommendations
without explanation.
REDWatch welcomes some of the changes
made after the Green Paper exhibition but is disappointed that many of the
issues raised by REDWatch and the majority of community submissions appear not
to have been seriously considered in the formation of the White Paper.
This lack of response to
community input makes REDWatch concerned about the seriousness of the
Government when it talks about improved community participation. There is no
explanation as to why widely supported changes have not been adopted.
If community engagement is to be
real, rather than a tick the box exercise, there needs to be acknowledgement of
differences and real discussion about areas of difference. Submissions can then
deal with the real differences. This has not been possible with most of this
this exhibition and in many cases we find ourselves repeating what we said in
our green paper submission.
In making our submission REDWatch
acknowledges the work undertaken by the Environmental Defenders Office, the
Nature Conservation Council, The Heritage Council and the Better Planning
Network. In places we have drawn upon aspects of these organisations work
REDWatch generally supports their submissions.
Within this context REDWatch
makes the following submissions regarding the White Paper and the Draft
Legislation.
As requested we have structured
our submission to cover white paper chapters. This however requires some
repetition as similar issues relate to different sections of the report. It
also makes it difficult in making comments about the legislation which does not
follow this structure. We have tried to fit the legislative comments into this
framework.
Chapter 2 – The
New Planning System and Objectives
Ecologically Sustainable Development (ESD)
REDWatch opposes the removal of
Ecologically Sustainable Development (ESD) from the Objects of the Planning
Act. ESD is in the Objects of the current Environment Planning and Assessment
(EPA) Act and in 60 other Acts in NSW. It is nationally recognised and ESD must
be retained in the New Planning Act. To do otherwise is to significantly change
the checks and balances in the planning system.
REDWatch supports the
independent panel’s recommendation that ESD should be the overarching objective
of the New Planning System.
REDWatch opposes the use of the
term Sustainable Development unless it is given the same legal basis as ESD
including:
- the
integration of economic, social and environmental considerations in
decision-making; - the
precautionary principle; - intergenerational
equity; - conservation
of biological diversity and ecological integrity as a fundamental
consideration; - improved
valuation, pricing and incentive mechanisms, including the polluter pays
principle (per clause 1.3(2)).
The definition of ESD used in
the Planning Act must be consistent with that used in the Protection of the
Environment Operations Act 1995 in line with the recommendations of the
independent inquiry.
REDWatch opposes economic growth
being given a pre-eminent role in planning. The development process must deal
with economic growth in balance with environmental (both natural and built) and
social considerations as set out by ESD. After all the D in ESD is development
or growth, but under ESD it is considered in a wider context than is proposed
in the New Planning System.
If the ESD principles are
removed for any reason then their equivalence needs to be written into the
legislation and the Objects amplified to provide the same coverage as would
have been achieved had ESD principles been used.
Other Objects
REDWatch wishes to submit that
Social Impact Assessments need to play a larger role in the proposed planning
system. SIA are essential for identifying the impacts of major developments on
the surrounding and future community, and the services and infrastructure that
needs to be delivered to mitigate that impact. From REDWatch’s experience in
Redfern and Waterloo, especially in relation to public housing, SIAs developed
with the community are crucial in planning outcomes that works for the entire
community. This is especially so where existing communities are directly
impacted by redevelopment.
Consequently the Objects of the
new Act must include the promotion of quality of life, residential amenity,
local character and a high quality built environment.
We also submit that mitigation
of the effects of climate change should be included in the Objects of the Act.
We are concerned that this aspect is unrecognised in the New Planning System.
The importance of addressing climate change is recognised in Moore and Dyer’s
Recommendation 8.
In addition the conservation of
built and cultural heritage must be identified as one of the Objects of the Act
(not just as a subset of the Object pertaining to the ‘protection of the
environment’). We support the wording of
an Object reading: ‘the identification, conservation and appropriate management
of heritage’. The current words
‘sustainable use’ must be removed as their meaning is unclear and unnecessarily
confusing. Potentially this could be used to support removal of heritage which
was not readily adaptable to a new use.
REDWatch also supports the
inclusion of wording such as ‘the identification, protection and appropriate
management of Aboriginal heritage’ in the Objects. Aboriginal Heritage has a
unique place in Australian Heritage and by its nature its location is not
necessarily known. The protection of this heritage needs to be included in the
Objects.
REDWatch supports the following
recommendations of the Better Planning Network and the Environmental Defenders
Office:
- The
inclusion of the wording ‘the protection of prime agricultural land and
water resources’ in the Objects is also supported. - There should be specific
references to ‘the protection and conservation of native animals and
plants’ and ‘the provision of land for public purposes’ in the general
environmental protection objective. - The legislation should clearly
state that all decisions, powers and functions under the new Act and
relevant subordinate instruments must be exercised consistently with the
principles of ESD.
REDWatch is concerned that the
White Paper puts major emphasis on streamlining the planning system for
developers and economic growth without balancing this with either the
responsibilities that the developers hold or the rights of local communities
and the environment (both built and natural) that will be impacted in the
development process. Ensuring the Objects reflect that balance is crucial for
delivering a planning system that balances the competing interests inherent in
ESD.
Chapter 3 – Delivery
Culture
Problems from Conflicting Planning Objectives
The delivery culture is derived
from the final Act. REDWatch is concerned that the current proposal will leads
to a “Development uber Alles” approach which is very different from a strong
balanced planning approach. Under the former, government gets out of the way
and lets the market rule, in the latter the state decides on the planning
framework and it is enforced. These are admittedly the polar extremes but they
also lead to and will reflect very different planning cultures.
Much has been said about
Vancouver, but little about the very rigid planning culture that is behind that
system. It is built on a transport hierarchy that has private cars last, uplift
capture and strict planning controls. None of these are proposed in the NSW
system. As Brent Toderian said in his visit to Australia in April 2013, it is a
package where the developers like some bits, residents groups others, but
Vancouver worked because both were there.
It is difficult to see the NSW
system having this balance. It looks more like a retreat to 1970s where the
market rules and balance is not in the system. The checks and balances are not
currently valued and they are seen as standing in the way of development.
The New Planning System for
example seeks to speed up approvals for buildings that will stand for decades and
that that the community/residents have to live with. How do resident groups,
which meet monthly and have limited resources, deal with merit assessment
within the short timeframes suggested? Councils currently have problems meeting
current exhibition periods on SSDs and they have paid staff to work on
assessments. The culture of speeding things up undermines considered
submissions and most importantly undermines community participation.
Further how is a delivery
culture promoted if it is not supported in the Act?
How is community participation
built when legally it is not essential and a plan cannot be challenged because
it does not take place?
How in a system built on
Ministerial patronage, are people stopped from being docile because otherwise
they might not be considered for a panel position?
How are the conflicts of
interest, when you have part time panels and those on the panels are able to
work in the industry for the rest of the time handled?
How are the corruption risks
associated with so much power being legally in the hands of the Minister and
the Director General handled?
Listen to Local Communities
REDWatch is of the view that the
New Planning System needs to recognise that local communities hold a lot of
important knowledge and that this can strengthen the planning system if
properly accessed.
It is for this reason REDWatch
is of the view that comments on Code Assessment should not be abandoned until
Strategic Planning and Code Assessment are shown to make such comment
unnecessary. Community input should provide a feedback loop to the assessment
of both the comprehensiveness of the Code and the appropriateness of the
Strategic Plans.
Planning culture needs to move
from consultation being seen as a delay or a box to tick, to being seen as an
important part of the process. In Redfern Waterloo those developers who have
talked with residents and taken on board their comments have had ended up with
more harmonious and improved developments. The Department should encourage such
conversations throughout the development process.
REDWatch is concerned that
during the consultation on the New Planning System that the Department seemed
to simply propagate the White Paper assertions rather than engage in discussion
about the issues. It was hence almost impossible to discuss issues like the
removal of ESD or to get clarification on specific issues.
REDWatch for example requested
clarification on the interaction of the New Planning System with the Metropolitan
Strategy but received no clarification despite following the matter up. If the
Department is to engage with the community it has to have the resources and the
will to move from presenting a proposal and collating submissions to answering
questions, discussing issues and being genuinely open to community involvement
on the issues. This was not evident in the New Planning System and Metropolitan
Strategy consultations.
REDWatch also requests community
engagement around the transition arrangements for the introduction of the New
Planning System. We are particularly concerned about the problems that may
arise from the overriding of recently completed LEPs by strategic compatibility
certificates, and the problems that may result from the removal of community
comments on Code Assessment while the Codes and Strategic Plans are not yet in
place. REDWatch supports the retention of community comment on Code DAs until it
is demonstrated that they are no longer necessary.
REDWatch does not support the
Urban Taskforce June 2013 “Interim Strategy while Planning Reform is
implemented over the next 2 years”. Local communities have been involved in
preparing existing LEPs many of which, like City of Sydney, have already
accommodated the Metro Strategy targets in a manner similar to that proposed in
the White Paper. The proposal that all areas within 800 metres of railway
stations, town centres, along growth corridors and on key urban renewal sights
should be declared UAPs so developers can pick what they are interested in
developing flies in the face of both community participation in the existing
LEPs and the principles of the community participation in the white paper and
is opposed by REDWatch.
That the Urban Taskforce feels
it can promote such radical interim measures at the close of exhibition of the
White Paper underlines the necessity for the transition arrangements, proposed
policies and codes to be open to public comment prior to their adoption by the
Minister.
Lack of will to implement plans
The planning system has also
suffered from its inability to stick to the plans it develops and the inability
to resist treating some developments as exceptions. It is difficult to see how
the emphasis in the White Paper on Strategic Planning will sit alongside the
increased mechanism for developers to get around those plans – merit assessment
over code, compatibility certificates, SSDs, rezonings etc. What culture does
that need? A strong Strategic Planning culture or a culture that helps
developers get around the Strategic Planning if it does not suit them?
This is illustrated in the City
of Sydney where the earlier Metro Strategy targets have been incorporated in
the LEP and yet State Significant Developments (SSD) keep being called in to
increase employment or residential targets. If the new Metro Strategy targets
are likely to be similar to the last Metro Strategy targets and they are
already in the City’s LEP, why are new City Shapers needed and new proposals to
increase the density above the City of Sydney’s already agreed proportion?
Such differences need to be
addressed otherwise there will be on going confusion and contradictions in the planning
culture of the Department.
REDWatch is of the view that
political will is needed to resist the approaches for quick fixes from the
development industry that seem to have hijacked the planning system. The New Planning System should not seek to
satisfy the requirements of one group at the expense of society as a
whole. It must balance carefully social,
environment and economic needs for the wellbeing of all.
Judicial Review & Corruption Prevention
REDWatch does not support
provisions that seek to prevent judicial review proceedings to remedy unlawful
decisions made under the proposed Planning Legislation. Further, we do not
support provisions that retain restrictions to third party merit appeal
proceedings. Such provisions override judicial oversight of planning decisions
and are contrary to Government statements about improving accountability and
transparency in the NSW planning system.
In terms of delivery culture,
the possibility of review of a decision necessitates greater care by those
involved in the decision and ensures processes have been properly followed.
In this regard the issues raised
by ICAC about the planning system need to be addressed and REDWatch supports a
review of the final proposed legislation by ICAC before the legislation goes to
the Parliament.
Other Issues
One of the difficulties in the
current system encountered by REDWatch has been the need to deal with both a
local government and a State government instrumentality often on the same
matters. As part of the planning reform REDWatch would like to see decisions relating
to the Redfern Waterloo area returned to City of Sydney Council which is
well-placed to deal with complex State Significant Developments.
Clearly a change in direction of
the planning system necessitates mechanisms to produce the resultant cultural
change within the Department, the industry and the community. REDWatch is of
the view that the $3million allocated to this cause and to community
consultation is totally inadequate for the task at hand.
Chapter 4 –
Community Participation
REDWatch welcomes the White
Paper’s aspiration for greater community participation in the planning system.
This marks a turnaround from the mid-2000s exemplified in the removal of the
award winning Community Engagement Handbook from the Department’s website.
REDWatch is greatly concerned
that while the White Paper aspires to greater community participation this
aspiration is not carried through into the legislation or into the current
practice of the Department in its Draft Metro Strategy consultation.
It is even probable from our
reading of the New Planning System and the Draft Legislation that the proposed New
Planning System could see a further erosion of community involvement, rather
than addressing this issue. If this reading is correct then REDWatch opposes
any further erosion of community involvement.
REDWatch submits that the
aspirations of the New Planning System need to be fully reflected in the Act by
making the Community
Participation Charter enforceable, with all planning authorities required to
comply with the Charter’s broad principles including in the making of Community
Participation Plans. Clause10.12 of the Draft Act, which currently restricts
legal challenges due to the failure to have community engagement, should be
removed
Participation Charter
The nature of the Public
Participation Charter, the need for industry compliance with the Charter and
the resources available for community participation will ultimately determine
if this is a genuine attempt to engage civil society or if it is simply a
mechanism for trying to keep residents away from the DA process.
The preparation and
implementation of the Community Participation Plans under the Community
Participation Charter must be mandatory in the Planning Bill and subject to
judicial review rights. Without these
elements, the Community Participation Charter is worthless.
The Planning Bill must contain a
provision to mandate the need to publish all submissions on planning and
development decisions, as well as the reasons for particular decisions made by
planning and consent authorities.
The Community Participation
Charter must be supported by precise and enforceable legislative provisions for
community participation in the Draft Planning Bill. The provisions must
establish community participation requirements at each stage of the planning
process, including the development assessment stage.
There should be mandatory provision for the
regular independent review of Community Participation Plans.
REDWatch submits that “early involvement” in the
charter needs to also involve community participation in scoping and in
determining the evidence base to be used. As a matter of course contract briefs
should be publically available.
REDWatch submits that the “Right to be
Informed” in the charter must cover proposals as well as decisions. The
proposals / decisions must be presented with balance and fairness in the
material. Artists’ impressions should be from realistic street level
perspectives and all necessary information supplied. The approach needs to one
of open dialogue and not the proponent or the Department trying to push through
their proposal in a tick the box exercise.
The “Right to be Informed” in the charter must
also include the requirement for the Department or the proponent to clarify / respond
to questions raised by the community. REDWatch for example was unable to obtain
clarification from the Department on the interaction of the New Planning System
and the Metropolitan Strategy.
Education
Community capacity building is
central to meaningful community engagement in the New Planning System. Such
capacity building is especially important as part of any system change, but it
also important as part of an ongoing process that responds to changing interest
in the planning system within the community and changing community composition.
Explanatory material on the New Planning System
for the community should include clear information on changes to terminology
and the operation of instruments and decision makers in the new system, as
compared with the current system.
Information and training should be provided,
including as part of e-planning initiatives, to assist all members of the
community in engaging with the New Planning System.
Material should also be produced from the bottom
up, starting with the issues may be of immediate concern to residents in their
local neighborhood and then explaining how that is dealt with in the New
Planning System.
REDWatch has found interest
locally in introductory planning workshops taken by Peter Phibbs. We strongly
encourage the Department consider funding independent provision of such
workshops to improve community understanding of the New Planning System and how
the community can interact with it.
Consideration should also be
made of including a unit on planning as part of Civics Education in the state’s
education system and an occasional householder information drop to residents
throughout the state.
Significant additional time, resourcing,
expertise, training and oversight will be essential to do best practice public
engagement properly, and ensure community buy-in. This includes additional
resources for effectively engaging sectors of the community who may not
currently engage effectively such as, Indigenous, public housing and culturally
and linguistically diverse communities. The NSW Government needs to consult
further on the detail of how this will be achieved.
Strategic Planning
Currently the White Paper
proposes community input primarily on a regional level which increases the
difficulty of engagement as it is a long way from the abodes of community
members and their immediate community.
One difficulty we envisage with
the regional planning focus will be the absence of regional resident groupings
to provide a base for participation. Many residents’ groups only cover a suburb
or a small area which they know very well, and while they have an interest in
broader LGA policy they are not normally linked into broader LGA, Regional or
State mechanisms in the way councils, developers and the environmental movement
is. The Department may need to resource regional mechanisms if they are to
reflect the broad expertise of the regions residents groups
The White Paper makes no
suggestion as to how it proposes to generate community engagement in Regional
Strategic Planning. While we welcome the concept, we wonder if the Department
has a realistic idea of how much it will cost to run a genuine community
engagement process on such a large scale. Even within the four suburbs covered
by REDWatch, the RWA and SMDA have found this a challenge. The Department on
the Metro Strategy consultations have similarly found this a challenge.
What constitutes effective
community engagement around strategic planning has been one of the issues of
continual disagreement between REDWatch and the RWA / SMDA.
The problem is well illustrated
in Redfern Waterloo with the developments near Redfern Station. The RWA covered
BEP1 controls in its newsletter and distributed material across the RWA area in
2006 as part of the planning controls exhibition. This did not prevent many
people in 2011 from asking how it was possible that an eighteen storey building
could appear next to Redfern station. From REDWatch’s experience community
consultation requires time and resources if it is to be done properly and if
community sign on is to be achieved.
This problem is particularly
acute in Redfern and Waterloo’s public housing estates where considerable work
is needed to help that community understand planning issues and proposals for
redeveloping their estate. There is a special need for resources to be made
available to assist parts of these communities participate in the planning
process. Existing HNSW tenant support programmes like Housing Community
Assistance Programme and the even more thinly spread Tenant Participation
Resource Services Program have not been able to deal with the requirements of
the SMDA BEP2 and the HNSW Master Plan discussions. With no guarantee these
projects will exist after mid-2014, public tenants will be even further
disadvantaged in dealing with the Planning System.
Community engagement in
strategic planning is important, but community engagement takes time. REDWatch
draws the Department’s attention to work by Australian social planner and
ethicist Dr Wendy Sarkissian who argues that neighbours are resisting proposed
higher density housing because humans, like all animals, are hard-wired to
protect our territories. Sarkissian argues that giving communities time to come
to grips with proposed changes is an important part of dealing with this
understandable reaction. (NIMBY
responses to higher density housing: It’s all in your mind – University of
South Australia Adelaide, 29 May 2013)
Time is also important for
community groups too. Unlike the development industry and councils, communities
do not have paid people to analyse plans, consult stakeholders and write
submissions. Currently on State Significant Development Projects councils
normally see Environmental Assessments prior to the community. It has been our
experience that despite their resources, councils still have difficulty in
turning around their comments within the required timeframe. Yet it is expected
that with no resources residents’ groups and impacted individuals will be able
to meet the required timeframes.
For community groups that meet
monthly and need to consult their members the proposed exhibition period
mandated for 28 days is inadequate. A period of at least 2 months is required
to allow considered input from voluntary community groups.
Based on REDWatch’s experience
in Redfern Waterloo we submit that a longer process including a non-statutory
exhibition can generate greater community engagement and better outcomes on
statutory proposals.
For RWA BEP1 the built environment
plan and the associated SEPP were co-exhibited with no prior community
involvement, including by the Built Environment Ministerial Advisory Committee.
As a consequence the RWA did not gain the benefit of community knowledge before
making a statutory exhibition. It needed to make many changes that were not
subject to community review and progressed with elements that could have been
improved. In contrast, for RWA BEP2 the RWA/SMDA held a non-statutory
exhibition. While one month was too short for the exhibition, a non-statutory
exhibition has enabled the community to engage and raise their concerns prior
to the final exhibition of the plan. We understand that the results from this
input were considered useful by the RWA/SMDA as well as by REDWatch which
advocated the approach.
In Sarkissian’s terms the
community has also had some time to think about what is proposed for their back
yard before it comes back for a statutory exhibition.
Community Participation is very
important for Regional Plans as under the New Planning System it is proposed to
lock in, through the line of sight arrangements, key aspects that will effect
local planning in the Regional Growth Plans. The New Planning System does not
indicate how this community participation will be undertaken in any
participatory way in the new system. There are no community representatives on
the Regional Planning Boards only councils and government appointees. Regional
Planning Boards should also include dedicated resident members.
Given the ‘line of sight’
through cascading levels of strategic plans, community engagement in the
preparation of subregional and local plans is likely to be limited in its scope. This carries the risk of increasing community
frustration with the system. The ‘line
of sight’ must flow in both directions initiating at the local community level
and flowing upwards to regional and state planning, followed by an iterative
process.
REDWatch supports local fine
grain urban design studies being used to inform strategic plans. The approach
used by the City of Sydney in developing its LEP was to undertake such studies
and to use this to inform decisions as to where the growth should be
accommodated. The problem with a line of sight from the broad brush Draft Metro
Strategy is that areas covered by the broad brush are not suitable in the finer
grain for redevelopment for higher density due to heritage and other fine grain
attributes.
We submit that strategic
planning must take account of fine grain local characteristics in deciding if an
area is suitable for inclusion in the Strategic Plan for renewal.
Undermining Community Participation
REDWatch is concerned that the New
Planning System contains many ways for strategic planning to be over ruled or
undermined. As it stands it does not provide certainty for communities.
If communities are to be
expected to be involved in strategic planning to gain certainty of what will
happen in their community it is incongruous that the system also builds in a
number of manners in which that strategic planning can be circumvented.
The broad and unrestrained
powers of the Minister to amend Strategic Plans (including Local Plans) without
community consultation or community access to judicial review rights must be
curtailed. As they stand, these powers
can render community consultation meaningless as everything agreed to by the
community can be subsequently amended and changed by the Minister. There needs
to be a provision in the Planning Bill which states that the Minister cannot
amend Strategic Plans without further community consultation, including the
public exhibition of any proposed amendments, the publication of all
submissions received and the publication of the reasons behind the Minister’s
proposed amendments and ultimate decision.
Developers will always go for a
proposal that will give them the best returns. Under a strategic plan where
people know what is approved to be built, the best means of a developer ‘getting
some cream’ is if they can get an uplift that was not in the existing plan. If
growth targets have been met in strategic plans there should be no need to make
special pathways available to circumvent the strategic plan.
Every time this occurs people
question the benefit of being involved in orderly planning – witness the impact
on Part 3A on community perceptions of planning. The New Planning System needs
to remove mechanisms that rendered meaningless Strategic Planning controls.
These include the ability of Councils or other planning authorities to approve
spot rezoning after Local Plans have been made; the ability of the
Director-General of Planning to grant proponents variations even if the
proposed development is inconsistent with existing local planning controls in
Local Environmental Plans; and the wide discretion of the Minister to call in
State Significant Development.
Of particular concern to
REDWatch are Strategic Compatibility Certificates as these can be used to
overrule local plans. In the case of the City of Sydney the Metro Strategy density
targets have already been met in a new LEP. The ability under a compatibility
certificate to use the city shapers in the new version of the Metro Strategy to
add extra density without reference to the existing plan is not supported, and
as the targets have already been met fly in the place of Strategic Planning.
If strategic compliance
certificates are implemented they should be appealable by any affected party,
not just by councils.
REDWatch is concerned as noted
earlier that the Urban Taskforce is pushing an “Interim Strategy while Planning
Reform is implemented over the next 2 years” to over-ride existing controls so
developers can choose the parts of Sydney that they want to develop. Such a
proposal should not be considered and any proposals for such interim measures
must be subject to exhibition and community comment. The Urban Taskforce
proposal is opposed by REDWatch.
REDWatch has asked for the Draft
Metropolitan Strategy to be withdrawn and for it to be bought back with great
fanfare under the New Planning System. This is because the consultation has
been poor as demonstrated by both the attendances at information sessions and the
online portal. More importantly if the community aspiration of the New Planning
System is to be fulfilled then the broad community has to be involved in the
preparation and discussion about the Metropolitan Strategy. If they are not
then the new system fails from the beginning, especially given the line of
sight provision locks out some contributions further down the track.
REDWatch submits that the Metropolitan
Strategy should be scrapped and the process started again under the framework
spelt out in the White Paper for regional Strategic Planning
REDWatch also submits that all
Government Departments who propose developments should also implement the
community participation charter and have community participation plans.
REDWatch has had experience in dealing with Housing NSW, Department of Finance
and Services and the Redfern Waterloo Authority / SMDA / UGDC over BEP2 and the
Master Planning for the redevelopment of public housing in NSW. We have had to
fight HNSW/DFS for proper community engagement, the release of details about
their HAF funded Master Plan Agreement and for over 12 months written to almost
every relevant Minister trying to get a response from the DFS Minister
regarding public exhibition / release of Master planning work done by the Department.
REDWatch has found the
approaches of these government agencies to Community Participation mixed and
certainly below the aspirations of the Community Participation Charter.
REDWatch submits that all Government bodies involved in the development process
need to operate from the same community participation basis in their dealing
with the community over development. If this does not happen the community will
not accept the Government is serious about community participation in planning.
In this regard it is of concern
that in the move from the Sydney Metropolitan Development Authority to the
Urban Growth Development Corporation our community lost its mechanisms for
community participation in that agencies activities in Redfern Waterloo. This
was a retrograde community participation outcome.
Adequate resources and time must
be identified and committed by the Government to ensure meaningful community
engagement in all Strategic Planning beyond what is already happening now.
Comments on proposals
The White Paper’s emphasis on
reducing development timescales indicates to REDWatch that it is unlikely that
the time necessary for robust community consultation will be built into the New
Planning System. While inefficiencies can be removed from various parts of the
development approval process, community engagement is not a stage where this is
possible without undermining the community consultation process itself.
The New Planning System must
include mechanisms for encouraging developers to identify and address the needs
of those individuals and communities likely to be impacted by proposed
developments. One of the best ways to do
this is by encouraging discussions and input from effected parties or
communities prior to DAs being submitted. This mechanism has worked well in SSD
developments in the RWA area where proponents have been encouraged to consult
residents’ groups before submitting.
REDWatch submits that residents
and communities must have the right to comment on development applications that
will affect them. Removing the right of
ordinary residents and communities to comment on up to 80% of developments near
them is not supported in its current form.
This is of particular concern
because the White Paper does not give us confidence that Regional Strategic
Planning will adequately deal with fine grain issues within a particular
community in a way that will protect both community and neighbours’ amenity.
REDWatch submits that in the
transition from the existing system to the New Planning System that the current
right to comment should not be removed until it has been demonstrated that the
codes and the strategic planning are delivering on the promise that they will
do away with the need for residents to comment on surrounding developments.
REDWatch further submits that
during the introduction of Code Assessment that resident and council input on
code developments be used to refine the codes and the strategic plans.
Further REDWatch submits that
resident comment on code development should only be removed when it can be
shown that the new system is working. To do otherwise is to put too much faith
in an unseen and untested system to deliver without unintended consequences.
Complying and code-assessable
development must only be available for those types of development that are
genuinely low impact. Many of the
examples of complying and code-assessable development given in the White Paper
(pp. 127 and 130) cannot be said to be genuinely low impact development. Letting individual developments proceed without
community input will result in poorer design outcomes, reduced residential
amenity, adverse impacts on our environment and heritage and increased
community frustration with the planning system and the NSW Government that has
introduced it.
On Line Mechanisms
REDWatch welcomes the White
Paper’s proposals for greater transparency using on line mechanisms. However
from our experience consideration needs also to be given to the needs of older
people and those in public housing who have low internet use and who are not at
ease with this technology. Many people also have problems with dealing with
long documents on line.
There is also a recognised
problem with people reading plans and this will need to be addressed,
especially for Merit Assessments, if information is truly to be communicated
widely.
There must be an ongoing
mechanism for communities to provide feedback to the State Government on
various aspects of the planning system (ie- what is working and what is not),
during the transition period to the new system and beyond.
REDWatch supports the EDO Recommendation that
where a minimum exhibition period is provided, the legislation should
explicitly state that members of the public (and public authorities) may make
comment during these periods. We also support the EDO recommendation regarding
a range of Mandatory notification and consultation requirements.
Chapter 5 –
Strategic Planning Framework
REDWatch has dealt with a number
of strategic planning matters in the section above in the context of discussing
community participation and we will not go over all those issues in this
section even though they also relate to this section.
While REDWatch welcomes the
intended emphasis on strategic planning, transparency and public participation
we find that the White Paper does not provide enough information for us to
understand how, and if, the proposed system will be able to deliver on its
stated intentions.
The White Paper also does not
address how strategic planning on a regional level will mesh with the fine
grain necessary to assess feasibility at the local level.
As an example, on a regional
level North Eveleigh might look like a suitable site for a major redevelopment.
However at the local level the site adjoins a heritage conservation area, it
has a range of heritage constraints including a heritage interpretation plan,
and, according to its Concept Plan approval, needs a TMAP to address traffic
constraints from cumulative development prior to any development. In spite of these local constraints the Green
Paper suggested it may be suitable for an Enterprise Zone with very little, if
any, development controls.
REDWatch rejects the suitability
of inner-city brown and grey field sites for Enterprise zones with very little,
if any, development controls. We welcome the scaling back of these zones, but
they are still possible and are not considered appropriate for inner-city
brown-field sites or for redevelopment areas.
The White Paper is silent on how
strategic planning will mesh with local site analysis and the finer grain of
the local plans if a top down ‘line of sight’ is to be maintained.
In preparing the City of Sydney
LEP, Sydney Council undertook a series of Urban Design Studies for its major
precincts. These studies dealt with the fine grain of the inner-city areas as
well as identified areas where the growth required from the Metropolitan Plan
could be delivered. This element needs to be incorporated into Regional
Strategic Planning if it is to properly reflect local conditions and community
aspirations into strategic planning.
In the case of a number of
developments in the same area, a cumulative Social Impact Assessment must be
undertaken and the issues addressed in concert with all the developments.
Neither the White Paper nor the
Planning Bills provide a clear explanation of what specific evidence and data
will be required to enable evidence-based strategic planning.
The Government must confirm its
support for evidence based strategic planning by ensuring that there is a
consistent and reliable base data set across NSW, and making this available to
all users of the NSW Planning System. The data set must be based on the best scientific information
available.
Such an evidence base needs to
be publically available and subject to consultation and challenge. For example
given low response rates to the census in Redfern & Waterloo public housing,
ABS data does not necessarily provide an indisputable evidence base for policy
concerning this area and needs to be complimented by other data sources.
In the case of the Metro
Strategy such base data is not available and there has been no community
participation in the preparation of the plan as required for a regional plan in
the White Paper. This is another reason why REDWatch believes the process
should be re-initialised.
Outcomes based objectives for Strategic
Planning are needed to set the framework within which decisions are made, and
to provide key performance indicators for performance monitoring and
evaluation. Examples of such objectives
might include the requirement for strategic plans to protect or enhance quality
of life and residential amenity; conservation of built and cultural heritage;
provision of affordable housing; maintenance or improvement of biodiversity and
ensuring the protection of prime agricultural land and water resources.
The performance of the planning
system must be measured by a wide range of parameters beyond dwellings and jobs.
It should include criteria such as: the ‘liveability’ of our communities; urban
design and the quality of new built form; levels of affordable housing; public
transport uptake; protection of our environment and heritage; and achieving
Ecologically Sustainable Development.
Strategic Planning Principles
REDWatch is concerned about the
emphasis on prioritising economic growth in the Strategic Planning Principles.
We have dealt with the need for the balance inherent in the ESD principles in
our comments about the Objects of the Act. Strategic planning needs to happen
within a checks and balances approach, not with a priority on growth above all
other aspects.
REDWatch submits that strategic planning
needs to be built on ESD principles and if this is not adopted within the Act’s
Objects that it should appear in the strategic planning principles. ESD
principles should then flow through the entire strategic planning system.
The “having regard to” approach
to environmental and social considerations in Principle 1 does not replace ESD
and cannot be supported by REDWatch.
REDWatch is especially concerned
about the proposal that Local Plans “should
not contain overly complex or onerous controls that may adversely impact on the
financial viability of proposed development”. Any control could be
conceived by the proponent as having an adverse impact on returns on a project.
This proposal opens councils up to the need to be able to financially assess
the economics of development and provides a whole new area of potential dispute
to the Land and Environment Court. In essence it says you cannot protect a
heritage area in a Local Plan as compliance may make a proposed non sympathetic
development uneconomic.
REDWatch supports the analysis
done by the EDO, NCC and BPN on the Strategic Planning framework and supports
the changes proposed by the Better Planning Network detailed below.
The 10 Strategic Planning
principles make no reference to quality of life, residential amenity, housing
affordability, environmental or natural resource management outcomes, heritage,
cumulative impact assessment, climate change preparedness or urban
sustainability. In addition, Principles 1, 3 and 10 clearly prioritise economic
growth considerations at the expense of social and environmental outcomes.
Principle 1 states: ‘Strategic plans should promote the State’s economy and productivity through facilitating
housing, retail, commercial and industrial development and other forms of
economic activity, having regard to
environmental and social considerations’. The result of this Principle will
be that environmental and social considerations are bypassed and will always be
subordinate to development. This Principle could be re-written as follows: ‘Strategic plans should identify and protect
areas of high biodiversity significance and natural areas, areas of heritage
significance or neighbourhood character and identify remaining areas for
housing, retail, commercial and industrial development and other forms of
economic activity.’
Principle 3 states: ‘Strategic plans are to guide all decisions
made by planning authorities and allow for streamlined
development assessment’. This principle should read: ‘Strategic plans are to guide all decisions
made by planning authorities to allow for development assessment based on the
principles of Ecologically Sustainable Development.’
Principle 4 states: ‘Strategic planning is to provide
opportunities for early community participation’. This principle should read: ‘Strategic planning is to provide
opportunities for early community participation, commencing at the local level
and moving upwards to meet the planning vision for the subregion, region and
state.’
Principle 10 states: ‘Local plans should facilitate development
that is consistent with agreed strategic planning outcomes and should not
contain overly complex or onerous controls that may adversely impact on the
financial viability of proposed development’ This principle should read: ‘Local plans should permit development that
is consistent with agreed strategic planning outcomes and provide planning
guidelines to assist proponents in designing developments that fit into the
local context and minimise adverse impacts on amenity, environment and heritage.’
NSW Planning Policies
The shape of the New Planning System
will largely be formed by the new NSW planning policies. It is virtually
impossible to understand how the new system will operate in the absence of
these policies. On one hand the department has said that provisions like
heritage will just be rolled into the new system, but clearly with a move to
code assessment the existing arrangements will need to be reworked to cover the
80% of DAs proposed to be non-merit assessed.
How this transition is made will
potentially have a huge impact on what happens in terms of both built and
Aboriginal heritage assessment across the vast bulk of assessments.
REDWatch notes the concerns of
the Heritage Council, regarding the treatment of heritage in the new system and
in the transition to new policies. REDWatch is concerned that the issues raised
by the Heritage Council in their earlier submissions have not been addressed
and supports the issues raised in their White Paper submission.
REDWatch also notes that the New
Planning System does not contain targets for Affordable Housing nor mechanisms
to deliver affordable housing. The expectation that somehow the market will
deliver Affordable Housing that persists in the White Paper is not supported by
REDWatch. REDWatch draws the attention of the Department to the recognition of
this in the July 2012 COAG HSAR Working Party report:
“All things being equal, more
efficient supply should put downward pressure on house prices. However,
addressing supply-side impediments may not cause house prices to fall or rents
to ease significantly. It is possible for high house prices to exist even in a
relatively efficient market. This is because other structural and cyclical
factors — such as population growth and interest and unemployment rates — also
play a major role in determining the level and growth of house prices and
rents.
As such, reducing the
supply-side constraints will not necessarily be sufficient to address the
housing affordability problems faced by lower-income households. The issue of
(un)affordable home ownership may be largely confined to a lack of means for
some segments of the population to purchase or rent a dwelling, rather than a
physical lack of supply of dwellings”
REDWatch submits that the NSW
Policies should set Affordable Housing Targets for the state and should promote
mechanisms to encourage those targets to be met. Without such a policy focus
Affordable Housing is not going to be met by the market alone for the reasons
recognised by COAG above.
REDWatch submits there should be
a state policy and strategic planning that requires a spread of public and
affordable housing across state. In particular REDWatch opposes the removal of
public housing properties from the inner city and other desirable locations.
This thinning out of inner city public housing is both removing people from
their long term communities and support networks, but it is also reducing
public housing stock in close proximity to the services needed also by public
housing tenants.
As so much depends on how
existing policies are transitioned to the new system and on the new policies
required by the new system REDWatch submits that the NSW Planning Policies must
involve meaningful community engagement and be subject to parliamentary
scrutiny and judicial review.
Especially in the absence of ESD
there will be a need for new policies to deliver the environmental and social
policies to be addressed in Strategic Planning. REDWatch supports the Better
Planning Networks proposal for the need for the inclusion of the following in
NSW planning policies:
- A
policy to promote quality of life and residential amenity. - A
policy to ensure meaningful community engagement in planning and
development assessment - Policies
to replace or provide equivalent protection to all existing State
Environmental Planning Policies dealing with protection of our environment - A
policy to address/mitigate the expected impacts of climate change - A
policy promoting the conservation of built and cultural heritage, which
also recognises intangible heritage values, such as the spiritual values
associated with Aboriginal heritage.
REDWatch submits that for the
purposes of strategic planning a mechanism will need to be in place that
details how competing policies will be prioritised in the formulating of plans.
In general terms REDWatch
submits that the planning policies need to balance economic, social and environmental considerations rather than
growth at the expense of other planning considerations.
REDWatch also submits that State planning
policies also be reviewed by ICAC for corruption risk prior to gazettal.
Making,
amending or repealing plans
Appropriate studies (environmental, social and
economic) must be completed prior to the preparation of draft Strategic Plans,
including Local Plans, where not previously done or current. These studies need
to be publically available so that the community understands the evidence base
for a plan.
REDWatch submits that these studies should be
released as they are undertaken and not held on to and only made available
during a plan exhibition period. In short the community and the Government
should have access to the information at the same time so that everyone can
interrogate the data and formulate where that data leads them.
In Redfern Waterloo REDWatch has been
unsuccessfully requesting release of supporting studies for the precinct growth
study. Our argument has been that we can better respond to the final proposal
if we understand what it has been based upon and do not have to try to digest
this information at the same time as the final report. We have been advised
this cannot happen. Such a ‘work it out behind closed doors and then exhibit’
approach needs to change if there is to be genuine community participation in
plan making.
REDWatch submits that decision makers must give
reasons for decisions, particularly in exercising functions to make, repeal or
amend Strategic Plans or Local Plans, and that NSW Planning Policies, Regional
and Sub-regional Plans should be subject to independent review at regular,
specified intervals.
Regional Growth Plans
It is imperative that there be
“ground breaking arrangements for community participation” in the strategic planning
hierarchy because of the way in which each plan binds the next. This is especially
so for the Regional Growth Plan which sits at the top of the hierarchy.
As mentioned previously ESD must
be the overarching planning objective for Regional Plans so that there is a
real balance between economic, environment and social considerations.
In line with a balanced approach
Regional Growth Plans should be renamed Regional Development Plans.
Regional plans must protect
quality of life and residential amenity; identify and protect environmentally
sensitive areas and heritage; maintain or improve biodiversity and ecosystem
function; enhance catchment health and water quality; protect local food
production, prime crop and pasture lands; plan for the expected impacts of
climate change and consider the cumulative impacts of planning and development
decisions.
REDWatch is especially concerned
that the first of the Regional Growth Plans (the Draft Metropolitan Strategy for Sydney) has not been prepared in
line with the process outlined in the White Paper. For this reason REDWatch
submits it should be withdrawn and the process started from scratch in line
with the process outlined in the White Paper.
REDWatch is concerned that it
put a number of questions to the Department and received no response or
clarification. Among the issues raised were:
- How was the community a key source of evidence
and input into the draft Metro Strategy (p73)? - Were panels or committees made up of all
councils used to decide key planning issues (p73)? - Was the Commonwealth engaged in the preparation
of the draft Metro Strategy (p73)? - Was the Metro Strategy prepared with the input
and oversight of the CEO’s Group (p73)? - Is the Draft Metro Strategy what the Department
considers a plain English Document (p75)? - Is the level of Community Participation in the
Metro Strategy the level of input to be expected under the White Paper? - Is the Draft Metro Strategy for Sydney really
the format to be used other Regional Growth plans (p75)? - How will the DG certify community participation in
the Metro Strategy (p79) when the community engagement in strategic planning
has not been applied as per the White Paper?
REDWatch also asked the
Department if it could prepare and release a report showing the requirements /
checklist for the preparation of a Regional Growth Plan for Sydney as per the
White Paper for the New Planning System for NSW and setting out how these
applied or will be applied in any transitionary arrangements to the Draft Metro
Strategy currently on exhibition. No response has been received.
Given the new line of sight
requirements REDWatch also found it difficult to identify what items needed to
be included in the Metro Strategy so they were not precluded from consideration
in subsequent lower level plans.
REDWatch recommends clear
formulation of the scope of each plan level so that key matters of concern to
communities are not ruled out because they are not addressed in higher level
plans. This information should be publically available at the time of
preparation. For example into what plan level does affordable housing provision
need to be covered?
REDWatch is also concerned that
the Metro Strategy imposes new growth areas across Sydney for areas where the
population and employment targets of the previous Metro Strategy have already
been met. This is especially the case in the Sydney LGA. As far we can see
there has been no community discussion about the City Shapers and if those used
are the most important ones. Nor has there been any indication of whether the
City is to now accommodate even more growth because the City Shapers
potentially open up new areas for development not covered by the LEP.
REDWatch notes that there has
not been significant community participation in the Metropolitan Strategy
exhibition. Neither does it give effect to the NSW Planning Policies as these
do not yet exist.
Subregional Delivery Plans
As stated previously ESD must be
the overarching planning objective for all planning including Subregional
Delivery Plans.
It is not clear from the White
Paper how community participation will operate in relation to the preparation
of Subregional Delivery Plans.
REDWatch is concerned that the Subregional
planning boards have four government appointees as well as a government
appointed chair. In case of the Metro Strategy Subregions (before
amalgamations) this would see equal Government appointees and LGA
representatives in three regions (West Central and North West, North, South)
with a Government majority in West and only a LGA representatives majority in
Central and South West.
REDWatch is also concerned at
the potential for Ministerial patronage and the potential conflicts of interest
between part time government appointees and their other activities.
REDWatch also submits that any
Ministerial appointment to Sub Regional Boards should have planning expertise
and be from a relevant Government Department.
REDWatch hence does not support
the four government appointees to Sub Regional Planning Boards and submits that
each Sub Regional Planning Board has the power to appoint up to say two
additional expert members by agreement.
REDWatch submits that there must
be clear membership
procedures, expertise requirements and obligations for membership of Sub Regional
Planning Boards.
REDWatch submits that there
should be community representation on the Sub Regional Planning Board with a
brief of ensuring community engagement throughout the process.
REDWatch also submits that
significant funding must be made available to ensure the multitude of avenues
for consultation necessary to allow participation in a diverse community is
actually achieved. REDWatch notes that in the proposed Sydney Central Subregion
the consultation needs to reach 1.14 million residents and almost 1 million
workers.
REDWatch submits that Sub Regional
Delivery Boards and other planning and consent authorities must be legally
required to publish all submissions received, their analysis of these
submissions, as well as the reasons for their decisions. This will bring transparency into the decision
making process and eliminate the current practice whereby governments tend to
ignore the advice of experts and community if this advice is contrary to what
they want to do.
Local Plans
As previously stated
Ecologically Sustainable Development must be the overarching planning objective
and this also applies for Local Plans.
REDWatch is concerned about the
collapsing of zones proposed by the New Planning System. This is especially so
given the recent removal of the ability of DCPs to define finer controls for
development which have helped to provide some finer grain interpretation
including heritage.
In the absence of clear
mechanisms for protecting the existing diversity in the zoning system REDWatch
cannot support the collapsing of zones.
REDWatch submits that any reduction or standardisation of zones must maintain or improve
existing environmental and heritage protections in current State Environmental
Planning Policies and Local Environmental Plans.
Low and medium density
residential zones must not be collapsed into one broad Residential Zone as this
will not encourage the preservation of a diversity of housing stock. In all
likelihood it will lead to low density housing being replaced by medium density
housing as developers chase higher density developments with the resultant loss
of low density amenity through the zone amalgamation.
Local Plans must ensure that
residential amenity is protected in the proposed Mixed and Commercial Zones. As
they stand, these zones are too wide-ranging (ie. they include everything from
a neighbourhood centre to a metropolitan centre). It is not clear if or how
existing residential and heritage areas within Mixed Use and Commercial Zones
will be protected from commercial aspects of code development. As it stand it
looks like a small bar could replace a business next to residential and this
would not be merit assessed.
The White Paper is largely
silent on the proposed Enterprise Zones.
REDWatch does not support
Enterprise Zones effectively removing planning controls. Any proposal to use
this zoning must be subject to mandatory environmental and urban sustainability
and context requirements in line with ESD principles.
Local Plans must guarantee the
long-term protection of areas currently zoned E1, E2, E3 and E4. The replacement
of E3 and E4 zones with Rural and Residential zones is strongly opposed.
Local Plans must protect all
existing heritage-listed items (both state and local) and all heritage
conservation areas currently identified in Local Environmental Plans.
Local heritage character should
be recognised and protected in Local Plans including if developments are made
under Code Assessment.
Strategic planning must also be
comprehensively undertaken to identify currently unlisted heritage and
establish new heritage conservation areas in the future. As it stands, the Planning Bill contains no
recognition of the importance of Heritage Conservation Areas and no indication
that Heritage Conservation Areas or items of local heritage significance will
be afforded any protection. This is in contrast to the assurances of
Departmental officers.
REDWatch recommends the creation
of a heritage-specific conservation zone for Heritage Conservation Areas, within which any development would be
automatically merit-assessed.
REDWatch supports the Better
Planning Network’s proposals to retain provisions in the current standard
instruments.
The Standard Instrument (Local
Environmental Plans) Order 2006 contains a number of compulsory and model
provisions for environmental protection such as environmental zones,
restrictions on exempt and complying development in environmentally sensitive
areas, protection afforded to heritage conservation, provisions relating to
acid sulphate soils, natural resources sensitivity and natural hazard mapping. These must be retained in the new Local
Plans.
In addition, the heritage
provisions in the Standard Instrument must be immediately amended to reinstate
previous provisions requiring consent authorities to consider the heritage
impacts of proposed development in the vicinity of heritage items, rather than
allowing this to be optional. Similarly
the previous provisions requiring development consent for alteration or removal
of non-structural elements within the interiors of heritage items must be
reinstated. Currently all existing
non-structural elements, such as fireplaces, decorative plasterwork, ceilings,
floors etc. can be removed from the interiors of heritage items without
development consent.
REDWatch was represented at the
Heritage Council White Paper forum and supports the concerns and
recommendations raised in their submission.
Standard Instrument provisions should be
developed to address climate change especially for coastal local government
areas (including buffer zones, restrictive zoning, setbacks and other
resilience measures). There should be mandatory urban sustainability goals for
strategic planning and local planning applying to areas such as energy and
water use, heat island effect, construction, transport, waste reduction,
biodiversity, bush land protection and green infrastructure.
REDWatch is concerned about
mechanisms that can be used to circumvent Local Plans and submits that
circumvention of Local Plans must be undertaken only in the most unusual
circumstances. Any change to Local Plans should be subject to full merit
assessment, public disclosure and full review rights.
If the community is to support strategic
planning it has to give certainty about what will happen in their area. If a
community agrees to plans for absorbing the growth targets required for the
area, then there should be no regular reason for developments outside the Local
Plans.
In this respect REDWatch does
not support the use of mechanisms that circumvent strategic planning such as
Strategic Compatibility Certificates, Spot Rezoning, Gateway Determinations, over-Code
Development and State Significant Development. If it can be shown there is a
deficiency in the strategic planning that requires greater floor space than
planned, so that a particular development should be allowable, there should be
a review of the necessary plans. To do otherwise is to distort planning by
putting additional development into an area in conflict with what has already
been agreed. Such mechanisms undermine community acceptance of strategic
planning.
Spot Rezoning should be limited to exceptional
circumstances that maintain or improve environmental outcomes (see clause
3.25).
Where Voluntary Planning Agreements are entered
into for developments the agreements should be made public and subject to third
party appeal rights.
Strategic Compatibility
Certificates are currently limited to being an interim measure. We support this
restriction but would like to see them dropped all together. The exercise of
Strategic Compatibility Certificates overrides existing LEPs which have been
put in place with community consultation. In the case of the Sydney LGA the
metro targets have already been met and there should be no need to try to force
additional provision in excess of the targets already incorporated.
Chapter 6 –
Development Assessment
General
REDWatch has major concerns
about the introduction of the White Paper proposal to remove community input on
up to 80% of DAs within 5 years. Some of these concerns come from lack of
information about transition arrangements.
Currently there are a very small
number of developments that the community does not have a right to comment
upon. Even on low cost developments this process supplies a balance to the
right to develop and a mechanism to ensure the development does not have an
adverse impact. In 5 years it is proposed that 80% of developments will have no
right to comment. The question is how does the system move from one to the
other with community acceptance and without adverse impacts?
We support the EDO suggestions
that the setting of a
target for Code Assessable matters should be based on an objective
determination of low risk and low impact.
For REDWatch the removal of
community input into the DA process should only take place when it has been
demonstrated that the need for the existing community input is redundant in the
New Planning System. To do otherwise is to remove a fundamental check and
balance in the planning system before new checks and balances are put in place.
Prerequisites for removing
community input at the DA stage would be:
- the successful introduction of models for
strengthening community involvement in the new system – this would be
consistent with goals 23 & 29 of the NSW 2021 State Plan - the successful introduction of Strategic
Planning and it bringing on board the community so they have ownership of what
the plans say about their local community - the successful capturing in codes of everything
necessary to deliver results in Complying and Code Developments that do not
adversely impact on those that live in close proximity to these developments.
REDWatch proposes that to
achieve this there must be a feedback mechanism within community comments on
DAs during the transition period. This would enable the impacts of the new
plans and codes to be commented upon and refined to remove any code
deficiencies which become apparent at implementation.
If the new planning assessment
system is not delivering on the prerequisites above REDWatch submits that a
mechanism for DA comment remains in place until such time as the prerequisites
are met and there is community acceptance.
Having a pre-lodgement
requirement that applicants should notify potentially impacted neighbours and
discuss their proposal before lodging may help the early resolution of many
concerns neighbours might have about neighbouring developments.
REDWatch sees a potential
problem however with relatively high occupancy turnover where many people may
not have been residing in their current location during the Strategic Planning
phase but will be expected to accept what happens next door. This will need to
be addressed by the department in its processes.
It is also likely that only a
comparatively small proportion of the community will become involved in
Strategic Planning and there will continue to a large number of people who will
only become interested when a development happens near them.
In general terms REDWatch would
like to see a continued ability for comment on neighbouring developments as
this addresses a number of problems. The aim of the new system should be to
make neighbours feel they do not need to comment on DAs because Complying and
Code Assessment are working well with Strategic Planning.
Any proposal to have 80% of all
development in NSW determined as Complying or Code Assessable Development without
comment before the new system is shown to make comment unnecessary is not
supported.
Complying and Code Assessable Development
must only be available for those types of development that are genuinely low
impact. Many of the examples of Complying
and Code Assessable Development given in the White Paper (pp. 127 and 130)
cannot be said to be genuinely low impact development. Letting individual developments proceed
without community input will result in poorer design outcomes, reduced quality
of life and residential amenity, impacts on the environment and heritage, and
increased community frustration with the planning system and the NSW
Government.
Complying and Code Assessable Development
must be prevented in ‘environmentally sensitive areas’ (this term needs to be
defined in the Planning Bill), within Heritage Conservation Areas, in the
immediate vicinity of any heritage item, or within places in respect to which
Councils or the Minister have placed Interim Heritage Orders under Section 25
of the Heritage Act, to allow for proper identification and assessment of
heritage impacts.
It is unclear whether and how
unlisted heritage, including Aboriginal heritage, would be protected as part of
Complying and Code Assessable Development, as these development types do not
appear to require any assessment of the potential for unlisted heritage to be
present.
REDWatch notes the difficulties
raised by the Heritage Council in their submission regarding the identification
of Aboriginal heritage and submits that these concerns must be properly
addressed in the New Planning System.
There must be a legal
requirement in the Planning Bill to consider the cumulative impacts of
development and Ecologically Sustainable Development principles as part of the
development assessment process.
Any consultant, who prepares
studies related to development applications, such as environmental/ecological,
traffic, visual or heritage impact assessments, must be objectively accredited
and randomly selected by an independent authority (that is, NOT directly
employed by the proponent).
State Policies should specify
what needs to be considered in studies undertaken by consultants and the
consultants brief from the proponent should be included as an appendix in the
final report.
The New Planning System must
prescribe clear and objective criteria for decision making, including clear
criteria for merit assessment. Continued use of broad discretionary powers will
continue to breed community distrust and permit an unacceptable corruption risk
in the NSW planning system.
Complying Development
There have been
instances in our area where building modifications handled by private
certifiers have produced appalling results. It is imperative that expanded
Complying Development be closely monitored.
In the inner city a
new house of 2 storeys, first floor or ground floor additions can have a significant impact on
neighbour access to light and amenity. So can the change of use of a commercial
building next to a residence in a mixed use area.
REDWatch submits that Complying Development must have very prescriptive
requirements that will deal with inner city scenarios or exclude certain
Complying Developments from such areas.
Until the robustness
of the proposed new system is demonstrated Complying Development should only be
allowed for very low impact developments.
REDWatch submits that any move to include this form of Complying
Development must have a feedback / comment mechanism so that
Complying Codes and Local Plans can be adjusted in accordance with the
surrounding community’s implementation experience.
A development that does not comply with
development guide provisions, should not qualify as complying development. A
‘deemed approval’ of non-compliance with standards should not be permitted.
A mechanism should be put in place that allows
affected people to take action against certifiers who allow developments
outside the code including the requirement to rectify the breaches.
Certifiers, developers and builders should be
required to hold sufficient insurance to cover any rectification that may be
necessary to bring a development into line with the complying code.
Code Assessment
REDWatch is concerned about what
might happen under the expansive Code Assessment proposal. Part of this concern
is that the codes are not yet available.
REDWatch submits that codes need
to be publically exhibited for community comment prior to adoption and that
there should be a feedback mechanism to adjust codes in response to the
implementation experience of impacted community members.
Elsewhere in this submission
REDWatch has proposed that community comment on Code Assessment should continue
until it can be demonstrated that the codes and the strategic plans have
removed the need for community comments on DAs. In the meantime such community
feedback should be used by the Department to refine the codes and address
implementation problems.
While 80% of DAs may have a
value of less than $290,000, this does not mean that low cost developments
cannot have potential impacts that may not have been envisaged by those putting
together the codes. It should also be noted that many developments intended to
be covered by Code Assessment will cost well above $290,000 – e.g. 10 storey
blocks of units and rows of up to 20 townhouses. Every development needs to be
seen in its context and address the issues specific to that site.
REDWatch further
submits that codes must only apply to genuinely low risk, low impact
development. Code Assessment should be excluded from a range of sensitive environmental
and heritage areas including those currently protected by current SEPPs.
Of particular
concern is the potential impact of Code Development on areas of Aboriginal
cultural and heritage significance. The nature of Aboriginal heritage is that
sites are not necessarily listed or publically known. Codes must deal with this
difficult issue if sites are not to be lost for want of notification and
heritage assessment. As mentioned earlier the Heritage Council’s submission on
this matter is supported by REDWatch.
There should be
regular, independent review of codes to ensure processes, participation,
outcomes and governance are effective and to identify unintended code
consequences.
Code Assessment
needs to ensure that developers actually follow the code in their development
if they choose to do a Code Assessment.
REDWatch opposes the
merit assessment of only those aspects of a code development that protrudes
from the site’s building envelope. There is almost an industry norm for
developers to push the envelope and it is important that the new planning act
ensures that under Code Assessment what is built is consistent with the codes.
REDWatch submits
that to support code development, unless it can be demonstrated that there is a
deficiency in the code itself, developments which are submitted with elements
of the development outside the code should be either prohibited or Merit
Assessed in their entirety. As the development exceeds the controls there
should be the presumption that it not be allowed.
For REDWatch
community acceptance of Strategic Planning is linked to certainty. If people
participate in setting plans then they will expect them to be followed and not
circumvented at the first opportunity. If the Strategic Planning has
accommodated the expected growth and jobs then the need for increased density
above the agreed strategic plan should become very much an exception with very
good publically debated reasons.
Code Assessments should be notified as is the current situation for DAs
so neighbours know what is going to happen near them. Codes should also include
the requirement for proponents to advise those potentially impacted by a Code
Development prior to lodgement with a view to try and address any concerns
prior to lodgement.
All codes must be
consistent with an overarching aim of achieving ESD and decision makers should
be required to apply ESD principles (among other criteria) when making codes.
Merit Assessment
It is not clear what studies or
process the White paper expects under Full Merit Assessment. We would propose
that this should be similar to the current Environment Assessment process for
State Significant Development or DAs, depending on the size and significance.
The requirements under the new Act should not lessen the needs for adequate
studies to support the project exceeding an area’s controls.
Social Impact Assessments should
be a requirement of significant redevelopments. There should also be a cumulative
impact assessment that identifies the impact of this development when added to
other developments in the area on transport, public amenity and community
facilities so that infrastructure needs can be identified and arrangements made
to deliver what is required.
By their nature Full Merit
Assessments can exceed controls put in place for an area under Regional and
Sub-Regional strategies and there must be rigour in establishing that any
development which exceeds the controls can do so without adversely impacting on
the local area in any of the strategic planning aspects.
Currently the common practice of
developers going over the controls and expecting that the Land and Environment
Court will allow them up to an extra 10% undermines confidence in the controls.
The new Act should strengthen
compliance with the planning controls, hence our earlier stated rejection of
over code developments being allowed or only the portions outside the envelope
being merit assessed. Developments
should either be fully Code Assessed or fully Merit Assessed if they fall
outside the code.
It must also be taken into
consideration that if Strategic Planning has worked there will already be
sufficient areas set aside to provide the housing and employment needs. In
effect over control development not only circumvents strategic planning but it
denies other areas the opportunity for development. So if most developers
perceive it is better to develop say in the inner city and are allowed to
exceed controls other areas important for decentralisation from the city may be
starved of interest and funds, and so not be developed.
REDWatch supports the EDO recommendation that there
should be additional criteria for decision makers exercising Merit Assessment
functions (per clause 4.19) including:
- the
suitability of the site for the development (and appropriate alternative
options); - the
cumulative impacts of past, present and likely future developments in the area; - climate
change impacts – in particular:
- the
development’s likely contributions to climate change (and mitigation
responses);- the
likely impacts of climate change on the development (and adaptation responses);- the
need for relevant conditions to address both mitigation and adaptation.
- the
public interest, specifically including relevant principles of ESD that should
apply. - REDWatch also supports the EDO’s
recommendations on merit review and appeal rights that: - There
should be more equitable review rights for third parties (community members). - There
should be an explicit, expanded role for the public in conciliation,
arbitration, and review processes (per Division 9.2). - Third
party merits appeal categories should be expanded as follows (per Division
9.3):
- where
development controls are exceeded (for example, if development is approved that
exceeds code-based; standards);- in
relation to major projects, whether or not the Planning Assessment Commission
holds a public hearing (per clause 9.6(3)(a));- to
provide more equitable time periods for objectors to bring merits appeals.
Large Merit Assessment Developments should have
a minimum exhibition period of 2 months to allow the community time to read the
reports and respond.
State
Significant Development
Like the rest of the planning system State
Significant Developments should be subject to ESD principles.
REDWatch has had experience with SSDs and its
predecessor and we are concerned that many SSDs were not necessarily state
significant. Like Part 3A it has become a way of pushing the envelope when
developers thought it would deliver better results than dealing with councils.
Under Strategic Planning the provision of ample
lands for housing and employment should be met in the places where the
community needs them, so there should not be the need for developers to seek
SSD status for their development to meet growth targets. REDWatch submits that
there needs to be clear and objective criteria for the Minister in exercising
powers to ‘call in’ development as State Significant Development (per clause
4.29).
There should be clear legislative requirements
for assessing SSDs, with best practice standards for public consultation,
independent environmental assessment, and review.
Decision makers for State and Regionally
Significant Developments should be required to consider the provisions of Local
Plans where the development will have an impact.
All SSDs should be ‘impact assessed’
development that is subject to an Environmental Impact Statement (EIS) and
mandatory consultation during assessment. They should also be subject to the criteria
recommendations listed above in relation to Merit Assessment.
Concurrences and referrals (including Species Impact
Statements and approvals listed in Table 1 of Part 6, Division 1 and Heritage
Controls) must be:
- reinstated
for State Significant projects, and - retained
for any proposal involving a significant environmental or heritage impact.
As stated earlier REDWatch is opposed to Strategic
Compatibility Certificates and is of the view that the long term mechanism is
adequate to deal with any transition requirements.
In this regard REDWatch points out that in the
City of Sydney LGA the targets for homes and employment have already been
incorporated into the most recent LEP and this should provide ample
opportunities for development without the need for the LEP to be over-ridden by
the proposed Compatibility Certificate.
SSDs should have a minimum exhibition period of
2 months to allow the community time to read the reports and respond. Currently
even Council planners who are employed to comment (and see the Preliminary
Application for DGR comment) find it difficult to meet 28 days period allowed
for comment.
Environmental Impact Assessment
It is unclear what types of
developments can be included in the EIA development category although it
appears as if these developments include those most likely to have major environmental
and heritage impacts and/or that breach the planning controls in more than a
minor way. Care must be undertaken in streamlining such important assessments.
REDWatch would prefer relevant departments,
council and the community to submit details of the studies that they think
should be undertaken and that these then be reflected into DGRs as per the
earlier Part 3A process.
REDWatch supports the EDO’s
recommendation of replacing public authority self-assessment with an impartial,
arms-length approach (see Infrastructure and EIA recommendations below);
- improving
transparency of EIA processes as part of upfront community engagement before
decisions are made; - adopting
best practice standards for Strategic Environmental Assessment (see Strategic
Planning recommendations above); - external
peer-review and auditing of EIA reports and subsequent project outcomes; - requiring
the Minister to report annually on the effectiveness of EIA systems;
As for SSDs, EIS developments should have a
minimum exhibition period of 2 months to allow the community time to read the
reports and respond and be governed by ESD principles.
Independent Experts
REDWatch supports the
accreditation of private experts to ensure that reports are undertaken in a
professional and nonpartisan manner.
REDWatch also supports the
release of the brief provided by proponents to consultants as an Appendix of
the final report.
REDWatch recommends that either
consent authorities reject expert reports that are not up to standard and/or
that an expert review process be established where questionable reports can be
reviewed by a panel of independent experts in the field.
Alternatively there could be a
fund within the Department which enables the Department to hire consultants to
review questionable reports. This was the case when the Department hired SKM to
review the traffic study on the North Eveleigh Concept Plan. Our preference is
for a transparent expert panel review.
REDWatch does not support
certifiers being directly chosen by the developer that they need to certify.
REDWatch supports an arm’s length private certifier pool and strong penalties
for both developers and certifiers who corrupt the private certifying system.
Judicial review and merit-based appeal rights
The New Planning System must
ensure checks and balance to ensure development preserves community, regulator
and developer rights. Central to this is transparency and the right to appeal.
REDWatch supports the recommendation
of the ICAC in its Green Paper submission (p22) that third party merit-based
appeal rights must be available in relation to all developments, including
State Significant Development. As BPN has pointed out third party review rights
do not result in a deluge of cases coming before the court but what they do is
to hold those making decisions in the process accountable as they know their
decisions can be subject to appeal.
There should also be a right for
any person to go to the Land & Environment Court and seek judicial review
in relation to all of the provisions of the Planning Bill, including decisions
by the Minister and his delegates (such as the Planning Assessment Commission
and officers of the Department of Planning and Infrastructure) in relation to:
Strategic Plans, Strategic Compatibility Certificates, and decisions relating
to State Significant Development and Public Priority Infrastructure.
The preparation and
implementation of Community Participation Plans should also be subject to
rights of review on judicial grounds.
The right to request a review of
a decision to grant or reject a spot rezoning request must be available to both
developers and community members.
REDWatch supports the EDO’s
proposal for strict limits on
development outside established strategic planning processes. This includes:
- strictly
limiting rights to spot rezoning and rights to vary standards to circumstances
that where a proponent can clearly demonstrate that a proposed development will
maintain or improve environmental and social outcomes based on relevant
studies; - limiting
proposals that depart from standards and require rezoning to go through a
transparent and objective process, including community consultation and a right
to be heard; - encouraging
third party (community) participation in all review and appeal mechanisms
proposed for developers (whether for spot rezoning or other decision review
rights); - instead
of an automatic appeal right for code-assessable development after 28 days,
such rights could be triggered by requiring developers to notify council of an
intention to appeal if a project is not determined within a further period
(such as 14 days).
Limiting judicial review and
third party merit appeals rights is contrary to the promise made by the
Government that accountability and transparency would be improved in the New Planning
System and severely undermines community confidence in this system, the NSW
Department of Planning and Infrastructure, the Minister for Planning and
Infrastructure and the NSW Government as a whole.
REDWatch reiterates the
necessity for ICAC to review corruption risks in the Act before it is submitted
to Parliament so that the appeals necessary to inhibit corruption are reflected
in the new Act.
Streamlining referrals and concurrences
REDWatch is concerned that the
one stop shop approach to concurrences seems aimed at speeding up the approval
process rather than ensuring the best outcome is achieved in a timely manner.
We are also concerned about the power proposed for the DG and the Minister.
REDWatch supports the EDO proposals that:
- The
Director General’s powers and discretions to determine matters (as a one stop
shop) should be removed, and a unit should be established (within an independent
Planning Assessment Commission) to work on concurrences, which draws on
external agencies for personnel and is still bound to make decisions according
to their respective legislative frameworks. - The
Minister’s broad discretion to dispense with concurrence and consultation
requirements that protect environmental values (under Part 6 of the Bill, other
Acts and Local Plans) should be removed (per clause 6.9).
REDWatch supports the Heritage
Council in its assertion that involvement with developers around key heritage
sites has resulted in outcomes that would not have been possible in the limited
time proposed in the White Paper.
The role of concurrences must be
to ensure that specialist parts of government undertake the work necessary to
ensure their areas of responsibility are covered in a development approval.
Speed should not be the only consideration. This is especially important for
concurrences relating to:
- Environmental protection including native vegetation, threatened
species, ecosystems, pollution prevention, climate change impacts and
mitigations - aquifer
interference approvals and coastal habitats - Aboriginal and built heritage
REDWatch supports the Better
Planning Network recommendations on Concurrences:
- The review of concurrences, as proposed by the
NSW Government, must involve consultation, transparency and clear reasoning. - The Heritage Council’s existing approval role
for Integrated Development Applications (IDAs) for items on the State Heritage
Register must be retained as must the role of the Office of Environment and
Heritage with respect to Aboriginal heritage.
Allowing the Director General of Planning to issue General Terms of
Approval in the place of the Heritage Council and the Office of Environment and
Heritage will jeopardise protection of the State’s most significant heritage
assets. - The Heritage Act must not be switched off for
State Significant Developments. There is no justification for this and a level
playing field needs to be re-established between development and heritage
conservation. The role and powers of the Heritage Council and the legal effect
of the Heritage Act should be restored to that originally intended in 1977. - Concurrence requirements must be reinstated for
State Significant Development and retained for any proposal likely to involve a
significant environment impact or cultural heritage issue.
Chapter 7 – Provision of Infrastructure
REDWatch welcomes the aspiration
of linking strategic planning and development to the provision of state and
local government infrastructure.
As the White Paper notes
infrastructure delivery in NSW has not always been delivered hand in hand with
housing and employment developments. As a result infill and brownfield
developments in the inner city in particular have seen an increase in people
using the area with most often no provision of additional infrastructure
capacity.
The White Paper does not address
this backlog in delivery nor the constraints this backlog puts on the ability
of some inner-city areas to absorb more growth.
This became particularly
apparent in the debate surrounding the Government’s decision to increase
density on the Ashmore development near Erskineville station. Erskineville
station is at capacity and its ability to load more people on trains is
constrained by the express / all stations limitations of the rail system.
However because it is near a station it is just assumed transport is not an
issue.
A similar situation arises with
many developments close to bus routes. Developments are approved on the
assumption of bus access, but as inner city residents know, by the time they
get to the inner-city during peak on many routes buses are full and you can
stand at a stop and watch bus after bus go past without taking on new
passengers. In addition transport might work for your work week but might
either not function on the weekends or not go where you need to go.
The White Paper concern with the
provision of transport infrastructure seems to be more orientated towards
green-field developments rather than tackling the transport issues of fitting
more into areas around existing stretched transport corridors.
REDWatch proposes that as rail
is a responsibility of Regional Growth Plans in the White Paper that the Metro
Strategy needs to undertake an assessment of the transport infrastructure
backlog and the ability of an area to absorb any further growth.
If an area is found to be at or
over capacity there should be no more development in that area until the
transport infrastructure is able to cope with an increase in people.
REDWatch hence recommends that
the White Paper should also include processes for auditing transport
requirements of areas taking into account current, approved and proposed
development.
REDWatch further proposes that
there be a mechanism that stops processing of development applications that
increase density for areas where current transport infrastructure is not
capable of servicing the requirements of the area.
After years of promises for an
upgrade of Redfern Station, REDWatch notes that it is only a mid-term priority
in the state’s new transport master plan. Without lifts Redfern Station is
unable to adequately service the University or the aging public housing
community and yet development is likely to be allowed in the feeder area even
though this infrastructure is not up to standard.
REDWatch recommends that state
infrastructure upgrades for areas absorbing high growth, employment or
education be bought forward so that transport infrastructure is in place to
deal with the cumulative impact of development.
REDWatch submits that strategic
planning must assess key cumulative impacts and deliver the infrastructure
necessary to deal with those impacts. If the Department approves a rezoning
such as Ashmore Estate it must identify the impact through a SIA and then link
that development approval to the government’s own delivery of the necessary
infrastructure upgrades.
If the government is unable to
deliver the infrastructure upgrades then the dependent significant development
should not be allowed to proceed. It is unfair on a surrounding community for
the development to proceed and then for the community to wait decades for the
infrastructure necessary to mitigate the impact of the development. This aspect
needs to be strengthened in the White paper and the new Act.
Similar cumulative assessment is
also required across other infrastructure categories where local infrastructure
is put under pressure due to growth including schools, childcare centres, aged
care facilities and open space. This requires both a backlog assessment and
ongoing analysis.
Connectivity to such facilities
also needs to be assessed. It is no use saying for example that an inner city
area is close to regional open space if there is no public transport on
weekends that links communities to it and the new communities are encouraged to
not have private transport. Because there are few cross suburb transport
connections it difficult for some in the city physically to get to public
schools let alone find a place in them when you get there.
These issues are most likely to
be identified at local level and it is imperative that there be a feedback
mechanism that ensures such local concerns are fed into the Regional or
Sub-regional Plans that need to assess the need for infrastructure delivery.
REDWatch is concerned however
that the size of the infrastructure backlog is such that budgetary limitations
will not see the issue addressed within the 3 year timeframe proposed in the
White Paper. In this case also there is a need for a mechanism to declare an
area off limits to development until infrastructure can be delivered.
Growth Infrastructure Plans should be required
to include climate change risk assessment, mitigation and adaptation responses
– embedded in long-term infrastructure planning.
The White Paper also makes no
mention of how the community can request that a local infrastructure plan be
updated. Such a mechanism is important to respond to unexpected changes in
demand. An example is that much of the early high-rise in the inner city
assumed that residents would leave the area to have a family. When they did not
there was a drastic shortage of childcare, school places, sports and play areas
etc. There needs to be a mechanism for community initiated review of
infrastructure plans.
Ongoing analysis of the
cumulative impacts of urban consolidation on existing infrastructure, including
schools, childcare centres, aged care facilities, roads and transport systems
is required, and should be addressed when preparing subregional delivery plans
and growth infrastructure plans. Without
this, the provision of social infrastructure such as schools, hospitals,
childcare, sporting facilities etc. will be met at the discretion of relevant
government departments and subject to the vagaries of departmental budgets.
Because the State is both the
proponent and in control of the processing and determination of State Infrastructure Development
REDWatch is of the view that the SID processes need strengthening to ensure
maximum transparency of the process. REDWatch supports the EDO’s
recommendations on SIDs and Public Priority infrastructure including those
relating to Environmental Impact Assessment for infrastructure projects.
Biodiversity
offset contributions
REDWatch supports
the EDO’s recommendations on Biodiversity that there should be a distinction between direct
biodiversity offset contributions and indirect biodiversity contributions and that
consideration should be given to making the Bio Banking Scheme mandatory for
certain developments.
REDWatch also
supports that there
should be rigorous legal criteria for offsetting including:
- a
scientific assessment approach that maintains or improves biodiversity
outcomes; - a
like-for-like approach to offset impacts on specific species and communities; - a
bar on their use in ‘red-flag’ areas that are too valuable to be destroyed and
offset; - legal
protection for offset areas in perpetuity.
Housing Affordability
and Affordable Housing
REDWatch is concerned that the
White Papers aspiration to create housing affordability will not be realised by
the proposal put in place. At its heart it assumes that a small amount of new
housing will drop the overall market and that developers will continue to
develop new properties when a particular price point is exhausted rather than
move to more attractive areas. The strategic planning lines on the map may in
fact drive up prices as landholders hang out for higher returns in areas
expected to grow rather than release their sites for development.
We have mentioned earlier COAG’s
recognition of the fact that increases on the supply side may not impact
housing affordability. COAG also highlighted that the market does not impact
the lower end Social and Affordable Housing.
REDWatch is concerned that the
White Paper turns off mechanisms currently used to support new Affordable
Housing without putting any processes in place to ensure that houses are
produced for those who will not have their housing needs met by the market.
REDWatch submits that the White
Paper should contain both Affordable Housing targets in line with other states
where this happens, as well as strategies to meet those targets.
REDWatch is concerned that value
capture on rezoning has not been considered as a revenue area for either
infrastructure or Affordable Housing delivery. REDWatch encourages the
Government to explore value capture as one of the mechanism to meet public
benefit in the planning system.
We understand that in Vancouver
the developer only receives 30% of the uplift from rezoning with 70% going to
the state for public purposes. This area needs to be properly explored in the
NSW planning system to ensure resources for public infrastructure including
Affordable Housing.
Chapter 8 – Building Regulation and Certification
REDWatch welcome the inclusion
of Building Regulation and Certification in the New Planning System, its
exclusion from the Green Paper was a major concern.
REDWatch is still concerned
however that a system where the regulated pays the regulator will always be
open to abuse and this risk is not addressed adequately in the White Paper.
Any certifier who is responsible
for assessing and approving a development must be objectively accredited and
selected independently of the proponent. REDWatch suggests that certifiers be
drawn at random from a pool or appointed randomly by a consent authority to
avoid developers choosing compliant certifiers. This is a significant
corruption risk.
There needs to be harsh
penalties against developers and certifiers that allow buildings to be built
that do not in the end meet the codes that should have been applied. There
should also be restoration rights for effected neighbours and purchasers paid
for by either certifiers’, developers’ or builders’ insurance.
We note and support the Heritage
Council position that no private certification should be permitted in Heritage
Conservation Areas or in relation to developments that would impact on State or
locally listed heritage Items.
In REDWatch’s view consultants
preparing the Environment Assessment and other required reports should be
accredited and their work should be subject to review by the accrediting body
and their peers.
If planning is to have community
confidence it is important for the general community that what is built
complies with the planning controls unless there is some very good reason.
Mandatory performance monitoring
of the New Planning System should also evaluate the final built form against
the starting proposal and the development compliance as part of any ongoing
monitoring and improvement process.
Mandatory performance monitoring
should also ascertain the reasons for non-delivery of approved development to
ascertain if this is related to issues within the planning system or if the
non-delivery is a result of market changes, finance or other delivery issues.
Conclusion
REDWatch appreciates the
opportunity to comment on the White Paper and draft legislation.
We hope that our experience in
the Redfern Waterloo area and the issues we have raised will help improve the
proposed New Planning System.
REDWatch looks forward to seeing
the future elements of the proposed New Planning System and being able to also
comment upon them. These include:
- Response to Submissions on the White Paper
- Revised Draft Legislation
- Draft NSW Planning Policies, Codes and
Regulations - Draft Transition arrangements especially in the
light of the Urban Taskforces Interim Strategy proposal
REDWatch also looks forward to
involvement in these discussions through the Better Planning Network and such
other formal mechanisms that may be established for consultation with resident
and community groups.
For Further Information
contact:
Geoffrey Turnbull
REDWatch Spokesperson
c/- PO Box 1567
Strawberry Hills NSW 2012
Ph Wk: (02) 8004 1490
email: mail@redwatch.org.au
REDWatch is a residents and
friends group covering Redfern Eveleigh Darlington and Waterloo (the same area
covered historically by the Redfern Waterloo Authority). REDWatch monitors
government activities and seeks to ensure community involvement in all
decisions made about the area. More details can be found at www.redwatch.org.au.