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NSW planning reforms: sustainable development

NSW planning reforms: sustainable development

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No 07/2013 by Daniel Montoya

This paper examines how ‘sustainable development’ is conceptualised and proposed to be applied in the NSW planning system set out in a White Paper and two Exposure Bills – the Planning Bill and the Planning Administration Bill. An appendix to the paper contains a summary of the proposed system. Comparison is made with ‘sustainable development’ in the current planning system. Commentary from selected stakeholders provides some analysis of the proposed system; these comments are too complex and extensive to be encapsulated in this summary. While a broad cross-section of stakeholders was selected, this paper does not purport to represent all stakeholder positions on the White Paper and Exposure Bills.

Definitions and legislative objects

Under the current planning act – the Environmental Planning & Assessment Act 1979 (EP&A Act) – sustainable development is defined as ‘ecologically sustainable development’ (ESD). A uniquely Australian term, ESD contains five principles, including intergenerational equity, the integration of economic, social and environmental factors, and the precautionary principle. Since its adoption in 1992 by all Australian governments, ESD has been incorporated into a large number of Commonwealth, State and Territory statutes and policies. [3.0]

ESD is one of ten objects of the EP&A Act. The Act does not assign priority to any of its objects over another. This is problematic because, as the Act contains objects that may conflict, it leaves decision makers without a means of resolving these potential conflicts. In addition, use of ESD as an object equal to the other objects is inconsistent with the internal logic of ESD. In other NSW legislation, where ESD features as an overarching object, ESD operates as a means of resolving conflict between competing objects. [3.1]

Whereas a 2011 Independent Review of the planning system commissioned by the O’Farrell Government recommended retention of ESD as currently defined, the White Paper and Exposure Bills adopt a new definition of sustainable development as follows:

      Sustainable development is achieved by the integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development.

Further, where the Independent Review recommended making ESD the overarching object of new planning legislation, the Planning Bill includes sustainable development as one object among nine of equal weight. The new definition of sustainable development is narrower than ESD, omitting three of the five ESD principles: the precautionary principle; conservation of biological diversity and ecological integrity; and improved valuation, pricing and incentive mechanisms, such as the polluter pays principle. ESD also includes a more substantial definition of the intergenerational equity principle. [3.3]

Planning instruments

Two types of planning instruments can be made under the EP&A Act: State Environmental Planning Policies and Local Environmental Plans. The Act provides that both may be made for the purpose of achieving any of the objects of the Act. Examples can be found where ESD is an object or aim of both types of planning instruments. [4.1]

The new system will feature a hierarchy of four strategic plans: NSW Planning Policies; Regional Growth Plans; Subregional Delivery Plans; and Local Plans. While the White Paper proposes to include sustainable development in strategic planning, many of its proposals are not given effect in the Planning Bill. Rather, several provisions indirectly provide for sustainable development to be taken into account. Proposed by the Bill are ten strategic planning principles to guide the preparation of strategic plans. Two of these principles make reference to having regard to economic, environmental and social considerations but do not make express reference to the ‘integration’ of these considerations. In provisions that set out requirements for periodic review of strategic plans, the Bill requires the responsible body (e.g. a local council) to ensure the plan continues to achieve the objects of the Act. [4.2]

Decision making

A significant body of case law has developed with regards to the interpretation and application of ESD under the EP&A Act. It appears that, according to this environmental jurisprudence, if an administrator does not take ESD into consideration when making any development assessment decision under the Act, it will become strong evidence of failure to consider the public interest, thereby potentially rendering the decision void. [5.1]

The definition of sustainable development in the objects of the Planning Bill includes specific reference to it being achieved through decision-making about planning and development. In light of recent environmental jurisprudence, it would seem that sustainable development will therefore be a mandatory consideration in every development assessment decision made by an administrator under the Bill, irrespective of its application in the body of the Bill. Of the different development assessment tracks established in the Bill, only the sections relating to merit assessment provide means by which sustainable development may be taken into account. No explicit requirement is made for sustainable development to be taken into account for complying development, code assessable development, development that requires environmental impact assessment, State infrastructure development or public priority infrastructure. [5.2]

The EP&A Act provides for ESD to be taken into account when the concurrence of a person is required for development that is likely to significantly affect threatened species. The Planning Bill, on the other hand, does not require sustainable development to be taken into account when concurrence is required in relation to threatened species. [5.1 & 5.2]

Environmental impact assessment

Under the EP&A Act, Environmental Impact Statements and Species Impact Statements must have regard to ESD principles. There is very little detail in the Planning Bill regarding what must be considered when conducting environmental impact assessment, these matters in general having been left for the regulations. No specific provision of the Bill requires Environmental Impact Statements or Species Impact Statements to take sustainable development into account. [6.1 & 6.2]