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REDWatch Submission on NSW Planning System Review Green Paper

Below is the text of the REDWatch Submission on the NSW Planning System Review Green Paper submitted on 14 September 2012. This submission raises many concerns based on REDWatch's Redfern Waterloo experience.

Re: NSW Planning System Review Green Paper

Thank you for the opportunity to comment on the Green Paper.

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 interventions associated with the Redfern Waterloo Authority and its successor the Sydney Metropolitan Development Authority.

Based on our experience of dealing with both local government and state planning mechanisms we would like to make some comments on the Green Paper.

  1. REDWatch is concerned that the Green Paper has not recognised the central role Ecologically Sustainable Development (ESD) should play in any revision of the Planning Act. REDWatch supports the independent panel's recommendation that ESD should be the overarching objective of the new planning system.
  2. While REDWatch recognises the need to overhaul of the Act we cannot support the overhaul if the interests of property developers and economic growth are put at the centre of the Act rather than ESD.
  3. REDWatch is concerned that the Green Paper does not deal with the 374 recommendations of the independent panel and in many places goes against these recommendations without explanation. This approach makes REDWatch concerned about the seriousness of the Department when it talks about improved community engagement. Failure to respond to the independent panel recommendation is likely to discourage future involvement in the new planning system as the government’s commitment to real community consultation will be questioned.
  4. REDWatch laments the winding back of community participation in the planning system as exemplified in the removal of the award winning Community Engagement Handbook from the Department’s website in the mid-2000s. On one reading of the Green Paper, despite its repeated references to consultation, 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 that further erosion of community involvement.
  5. Removal of the existing DA process and community input into it should only take place when it has been demonstrated that a model for strengthening community involvement in the new system has been established. This would be consistent with goals 23 & 29 of the NSW 2021 State Plan
  6. The continuation of the current DA notification and community comment process should continue as part of the transition process and should only be dropped when it has been demonstrated that a new workable model with genuine community participation has been established.
  7. Continuing the current DA / EA notification process provides a guaranteed system which contains the necessary checks and balances until the new system is established and proves it does not diminish those checks and balances.
  8. More broadly REDWatch is opposed to the industry call for special new transitionary arrangements.
  9. REDWatch is also opposed to the Green paper’s strategic compliance certificate proposal that proposes implementation of Regional Growth Plans can be prior to developing Local Land Use Plans and local planning mechanisms.
  10. If Strategic compliance certificates are implemented they should be appealable by any affected party not just by councils.
  11. The precautionary principle must be followed in both the new Act and in the transitionary arrangements.
  12. While ESD should cover Economic, Environmental and Social impacts, REDWatch is concerned that Social Impact Assessments do not play a larger role in the existing 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, Social Impact Assessments developed with the community are crucial in planning outcomes that works for the entire community.
  13. REDWatch is concerned that the Green 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 who will be impacted in the development process.
  14. Until the robustness of the proposed new system is demonstrated code assessment should only be allowed for low impact developments.
  15. Code assessment needs to ensure that developers actually follow the code in their development if they choose to do a code assessment. 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.
  16. The results generated by the codes need to be reviewed at regular intervals to identify unintended code consequences.
  17. In REDWatch’s view consultants preparing EA and other required reports should be accredited, and 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.
  18. If code assessment is to be adopted then it should only happen for buildings that fit within the precinct envelope. If a building exceeds the precinct envelope then the entire building should be subject to a full Merit Assessment and not just those bits that exceed the envelope. Such a step would encourage developers to either work within the codes or to prepare for a full Merit assessment.
  19. It is not clear what studies or process the Green paper expects under Full Merit Assessment. We would propose that this should be similar to the current EA 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 the areas controls.
  20. By their nature Full Merit Assessments 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.
  21. Code assessments should be notified as is the current situation for DAs so neighbours know what is going to happen near them. A mechanism must be put in place to deal with any issues that may be raised which may not have been considered in setting the Regional Strategic and Local Land Use Plans. 
  22. 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 good community reason. Currently the common practice of 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 either make the 10% available to all developers as part of the controls or strengthen compliance with the planning controls.
  23. 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.
  24. REDWatch is concerned that the regulation of the building industry, which is central to the final delivery of the planned product appears to have been quarantining and from the planning system. The planning system needs to ensure that what is delivered is consistent with what was expected. The failure to do this leaves those who purchase property left with the cost of the failures in the system.
  25. While REDWatch welcomes the intended emphasis on strategic planning, transparency and public participation we find that the Green paper does not provide enough information for us to understand how, and if, the proposed system will be able to deliver on these intentions.
  26. Currently the Green paper proposes community input primarily on a regional level – this is a long way from the abodes of community members and their immediate community and this increases the difficulty of engagement.
  27. The Green Paper also does not clearly address how strategic planning on a regional level will mesh with the fine grain necessary to assess feasibility at the local level.
  28. As an example. On a state / 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 prior to any development.  In spite of these local constraints the Green Paper suggests it may be suitable for an Enterprise Zone with very little if any development controls.
  29. REDWatch rejects the suitability of inner-city brown field sites for special zones with very little if any development controls.
  30. In particular we reject the Green Paper suggestion that North Eveleigh should be declared an Enterprise Zone.
  31. It is likely that at a regional level, as at the state level in the case above, some of the constraints that impact upon a proposed development will not be evident without local studies. The Green Paper is silent on how this strategic planning will mesh with local site analysis and assessment for strategic use.
  32. In preparing the City of Sydney LEP, Sydney Council undertook a series of Urban Design Studies for their 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.
  33. The Green 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. What constitutes effective community engagement has been one of the issues of continual disagreement between REDWatch and the RWA / SMDA.
  34. 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.
  35. The problem is well illustrated in Redfern Waterloo with the developments near Redfern Station. The RWA covered BEP1 controls in their newsletter and material across the RWA area in 2006 as part of the planning controls exhibition. This did not prevent many people from asking in 2011 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.
  36. 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 2013 public tenants will be even further disadvantaged in dealing with the Planning System.
  37. REDWatch welcomes the Green Paper’s proposals for greater transparency using on line mechanisms. We note however from our experience that 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.
  38. REDWatch has found interest in introductory planning workshops and suggests that the Department consider funding independent provision of such workshops to improve community understanding of the planning system and how the community interacts with it. Community capacity building is central to community engagement in the 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.
  39. The Green 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 one of the areas where this is possible without undermining the community consultation process itself.
  40. Community engagement in strategic planning is important but community engagement takes time. 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 but it has been our experience that despite their resources councils have difficulty in turning around their comments in the required timeframe. Yet it is expected that resident groups and impacted individuals will be able to meet the required timeframes with no resources. Making Development proposals public as early as possible will assist community groups and those impacted have more time to adequately respond.
  41. Based on REDWatch’s experience in Redfern Waterloo we would argue that a longer process including a non-statutory exhibition can generate greater community engagement and better outcomes on statutory proposals. For 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 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 who advocated the approach.
  42. REDWatch is particularly concerned that the proposed system excludes community input to individual development proposals. This is of particular concern because the Green 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.
  43. REDWatch notes the expectation that strategic plans will mesh with government infrastructure delivery plans; however we would like to see government infrastructure delivery and planning approvals more clearly linked.
  44. 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.
  45. 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 area needs to be strengthened in the Green paper and the new Act.
  46. In the case of a number of developments in the same area a cumulative SIA must be undertaken and the issues addressed in concert with all the developments.
  47. One difficulty we envisage with the regional planning focus will be the absence of regional resident groupings to provide a base for participation. Many resident's 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.
  48. 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.
  49. Many areas of the new planning system are unclear from the Green Paper and need to be clarified. This includes knowing what is expected to be carried over from the existing SEPPs, what studies are envisaged being undertaken for evidence based Sub-Regional Planning Instruments and how existing protections on sensitive environments will be preserved.
  50. There is also no indication of how emerging challenges like expected climate change impacts will be handled in the new system.
  51. We trust that the issues we have raised will be fully considered in the further work to develop a new Planning Act and System.


For Further Information contact:

Geoffrey Turnbull                                                                     

REDWatch Spokesperson

c/- PO Box 1567

Strawberry Hills NSW 2012                                            

Ph Wk: (02) 9318 0824                                                      

email: mail@redwatch.org.au