Draft Waterloo South People and Place Plan | For feedback until 31 May 2024
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REDWatch Submission on A New Planning System for NSW
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.
TfNSW proposal to reverse Little Eveleigh Street - until Sept 10th 2023
