Australia: NSW Councils to approve routine LEPs (including spot rezoning) and new mechanism for review

Last Updated: 31 March 2012
Article by Felicity Rourke and Rebecca Pleming

Introduction

On 27 March 2012, the Minister for Planning and Infrastructure (Minister) released a discussion paper entitled "More local, more accountable plan making" seeking council, industry and community feedback on proposed changes to Part 3 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) aimed at:

  • giving local councils delegation to approve certain Local Environment Plans (LEPs) – including spot rezonings; and
  • providing an opportunity for independent reviews of certain council and departmental decisions, including rezoning proposals, by a Joint Regional Planning Panel (JRPP) or Planning Assessment Commission (PAC) at certain stages in the plan-making process.

These proposed changes follow the NSW Government's announcement to reform the planning system as part of the Government's 10 year State plan (NSW 2021) and address issues that have been identified as part of the planning legislation review currently being undertaken by Ron Dyer and Tim Moore.

If enacted, these proposed changes will provide an opportunity for increased local engagement between councils and proponents in making certain types of LEPs, and they have the potential to speed up the rezoning process. Importantly these reforms will also provide an opportunity for independent review of some plan-making decisions.

What are the key changes proposed?

1. Council delegation to approve certain LEPs

The discussion paper proposes to delegate the Minister's functions in relation to making LEPs (under section 59(2), (3) and (4) of the EP&A Act) to councils where a Gateway Determination has been issued in respect of the following types of LEPs:

  • spot rezoning consistent with an endorsed strategy or surrounding zones or in accordance with broader Government policy;
  • mapping alterations or corrections that do not alter strategy endorsed development standards;
  • amending references to documents/agencies, minor errors and anomalies (section 73A of the EP&A Act);
  • reclassifications of land consistent with a strategy/supported by an adopted Open Space study; and
  • heritage LEPs supported by an Office of Environment and Heritage endorsed study.

The Department will generally play no further role in the process once the LEP is delegated to a council, other than routine monitoring of the process to ensure that Gateway Determination timeframes continue to be met.

Councils will also have obligations to report quarterly to the Department on processing times for delegated LEPs.

2. Proponents can request a Pre-Gateway Review

The discussion paper proposes a new review mechanism which would allow a proponent of a planning proposal to seek a review of Council's decision by the JRPP:

  • where the council has decided to not prepare a planning proposal; or
  • the council has not made a decision after 60 days of receiving the proponent's request.

In either case, the proponent will have 40 days to seek a review of the council's decision.

There are, however, strict requirements that must be satisfied before a proposal will be eligible for review. The proponent will need to be able to demonstrate that the proposal meets a number of criteria, including that the proposal:

  • will utilise existing capacity in infrastructure networks or that capacity can be otherwise provided for;
  • will be adequately integrated with existing public transport networks;
  • is likely to be supported by key environmental agencies;
  • will not detrimentally impact on the viability of identified centres; and
  • is consistent with endorsed local or regional strategies.

Demonstrating that a proposal meets these criteria will therefore be fundamental. Responsibility for conducting the eligibility assessment will rest with the Department.

For proposals which are eligible for review, the discussion paper suggests that the review process will effectively be managed by the Department which will prepare a report on the proposal for the JRPP. The discussion paper suggests that there will be an opportunity for Council, the Department and the proponent to meet with the JRPP as part of the review process.

Following a review, the JRPP will advise the Minister on whether or not the proposed instrument should be submitted for a Gateway Determination (and may require the council to submit such a planning proposal within 40 days). The JRPP's advice will be made publicly available.

In cases where there is no JRPP (such as the City of Sydney), the PAC will conduct the review.

3. Proponents and councils can request a Gateway Review

A further proposed change is that a council or proponent may request the Minister (or delegate) to alter a Gateway Determination concerning a planning proposal, when a Gateway Determination is made by a delegate of the Minister that:

  • a planning proposal should not proceed (40 days to seek a review);
  • a planning proposal should be resubmitted for Gateway Determination (40 days to seek a review); or
  • imposes requirements (other than consultation requirements) or makes variations to the planning proposal that the proponent or council thinks should be reconsidered (14 days to seek a review).

This type of review will not be available where the Gateway Determination is made by the Minister.

The Minister or Director-General may alter the Gateway Determination following receipt of advice from the PAC and decide whether the planning proposal should proceed, at which point the council and proponent will be notified of the altered determination and (if appropriate) post-Gateway consultation on the planning proposal can commence.

Conclusion

The proposed changes are likely to have significance for councils and proponents alike, providing an opportunity for increased local engagement in local plan-making and also providing opportunities for reviews of decisions in certain circumstances.

Public submissions are invited on the discussion paper. Submissions close on 4 May 2012. Please contact us if you have any questions in relation to the proposed changes or if we can assist in preparing a submission on the discussion paper.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Felicity Rourke
 
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