Five big challenges for the Planning White Paper – Challenge #5

NARI SAHUKAR*

Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

5. Appeals and Enforcement – letting in the light, or shutting out accountability?
A final aspect of the planning White Paper goes to the heart of access to justice under the new system – rights to appeal the merits of a decision, and rights to challenge legal errors and breaches through ‘civil enforcement’. These will be critical if the government is to make good on its State Plan goal to ‘Restore confidence and integrity in the planning system’.

Developers’ rights to review and appeal decisions will expand under the White Paper proposals, including against council refusals of ‘spot rezoning’ applications, and where councils fail to approve code-based development applications within 25 days (see Thursday’s post).

On the other hand, there will be no community appeal rights if a code-based development is approved that exceeds agreed criteria (relying instead on limited consultation rights). Community objectors will also continue to lose merit appeal rights against major projects, where the Planning Assessment Commission holds a public hearing – which can be requested at the Planning Minister’s discretion (under the Planning Administration Bill).  In other words, the new system entrenches the inequity between developer appeals and community rights to independent accountability through the courts.

As ICAC noted in its 2012 submission to the planning review, ‘The limited availability of third party appeal rights under the EP&A Act means that an important check on executive government is absent.’ Less than 1% of local council decisions are appealed on the merits, and Planning Department statistics shows that 99 out of 100 of these appeals are brought by developers, not community members.

But the benefit of third-party appeal rights goes beyond the few cases where they are exercised. The very existence of such rights puts decision-makers on notice, and leads to better decisions and greater community confidence. Further, as ICAC puts it: ‘The extension of third party merit appeals acts as a disincentive for corrupt decision-making by consent authorities.’

On civil enforcement, consultations have revealed widespread support for ‘open standing’ in the planning system. This allows anyone to enforce a breach of the law in court (as long as they can afford it). The White Paper proposes to retain open standing. However, the draft Planning Bill could seriously undermine this ‘iconic right’, by curtailing the public’s ability to challenge a range of legal errors or breaches in court. This includes fundamental areas such as community participation (see Tuesday’s post) and strategic plans. The Bill also appears to restrict certain third party enforcement rights under State pollution laws, but its full extent is unclear. For example, under these laws, EDO NSW recently assisted a community group to challenge pollution of the George’s River, in breach of the company’s pollution licence. We have raised these concerns with the Planning Department, and are continuing to seek changes that will maintain access to justice. The full force and spirit of open standing rights must be retained if these reforms are to have legitimacy.

Overall, the imbalance of review and appeal rights between developers and community members will continue to limit community confidence in the system.  In our view, the draft legislation must be amended to restore accountability and put the community on an equitable footing when it comes to appeal, review and civil enforcement rights.

Conclusion
When we started this series, there were six weeks left for consultations on the NSW Planning White Paper and draft legislation. Now there are five!  Time is short on the community’s chance to shape the scaffolding of the new planning system. But the Government already has nearly 1000 community and local council submissions to its 2012 Green Paper, and many of the calls for a more balanced and sustainable system – socially, environmentally and economically – remain unanswered.

EDO NSW believes fundamental changes are needed to chart a better course for the planning laws. Five major improvements would give much greater confidence that the Government has listened to the community, and is serious about sustainable paths to environmental planning and economic development:

  • Place ESD at the apex of the planning system, and apply its principles under law.
  • Boost the status of the Community Participation Charter to make sure it’s binding, and ensure its principles aim high.
  • Integrate environmental outcomes and sustainability requirements upfront in the strategic planning principles, including cumulative impact considerations and climate change readiness. Public participation and environmental outcomes must flow through the cascade of strategic plans.
  • Set and communicate clearer limits, safeguards and design incentives around code-based development assessment.
  • Restore accountability by putting the community on an equitable footing for appeal, review and civil enforcement rights (in areas like community participation, developments that significantly exceed set standards, and projects with the biggest likely impacts).

These changes would help to build a positive legacy for the new planning laws, with shared benefits for communities, businesses, governments and the environment – now and in the decades to come.

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

Five big challenges for the Planning White Paper – Challenge #4

NARI SAHUKAR*

Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

4. Code Assessment – all targets, no limits?
The biggest change in the White Paper’s approach to development assessment is to introduce ‘code assessment’ as the new, and predominant, assessment track. Code assessment would transform community consultation on neighbourhood development across a range of residential, commercial and industrial projects, by requiring standards to be set upfront in the Local Plan (in part through community consultation), and removing site-by-site consultation. Projects that comply with a Code would have to be approved by local councils, within 25 days. The White Paper sets a mandatory target of 80% code assessed development (or smaller-scale exempt and complying) within 5 years. Under-performing council standards would be replaced with departmental guides.

It is a high-stakes proposal from a community engagement perspective – and it’s safe to say the wider public are not really in a position to  know much about code assessment at this formative stage. No one wants a system where – say, two years from now – there is just as much angst about neighbouring development, but far less the community can say about it. There needs to be greater community understanding and input about codes (and their limits) before setting ambitious targets.

There is no doubt that code assessment could deliver faster approvals for developers – but the quid pro quo should be a commitment to high-quality building design and nation-leading sustainability requirements. Unfortunately, while the White Paper has a chapter on building design and certification, there is no commitment to update or expand the BASIX building sustainability tool to provide for better water, energy and material efficiency across residential, commercial and industrial codes. Nor does the White Paper start from the premise of fast-tracking environmentally friendly development through code assessment.

All that being the case, the White Paper’s assumption that 80% of developments can be code-assessed without any significant or cumulative environmental impact is given no evidentiary basis. If code assessment proceeds, clear limits and safeguards will be very important. For example:

  • Codes should be excluded from all areas of high conservation value, environmental sensitivity and cultural heritage significance;
  • Codes will also need to deal with cumulative impact considerations (the combined impact of thousands of fast-tracked medium-scale developments) and deal with interfaces between built-up areas and more sensitive areas;
  • The Government also needs to rule out code assessment for State Significant Development.

On Friday, this week’s final EDO NSW planning post looks at what rights will apply once developments are approved – or refused. Will the reforms restore an equitable balance of community appeal rights against bad decisions, and maintain open rights to enforce the law? Or will the pendulum swing further towards developer appeal rights? We look at these questions, and conclude this blog series with five essential improvements needed for the 2013 planning reforms.

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

Five big challenges for the Planning White Paper – Challenge #3

NARI SAHUKAR*

Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

3. Strategic Planning Principles – locking in an imbalanced approach?
EDO NSW supportsa comprehensive strategic planning framework set out in legislation.  The White Paper and Planning Bill set out 10 strategic planning principles to guide a cascading series of state, regional, subregional and local plans. Several principles deal with appropriate governance measures, including community participation, accessibility and evidence-based planning. Other principles have a clear economic focus.

Critically, none of these principles deal with improving or maintaining environmental outcomes, assessing cumulative impacts (of multiple projects and environmental pressures) or preparing for climate change. This is despite recommendations from the Government’s independent planning review panel to include these factors.  A recent Productivity Commission report also noted that ‘a range of instruments could be used to manage climate change risks in land-use planning.’ The Commission encourages a ‘risk management approach’ and ‘transparent and rigorous community consultation processes’ to get there. Despite the White Paper’s commitment to evidence-based planning, the Planning Bill remains silent on climate change and cumulative impact assessment.

Turning to the strategic plans themselves, the challenge for state and local governments will be to meaningfully engage communities on multiple levels, without overwhelming them. There is also a broader concern that, applying the principles above, the various Plans will prioritise economic targets without sufficient integration of social and environmental values. We address each level briefly below.

High level NSW Planning Policies will set critical standards on key issues that must be followed by lower-level strategic plans. However, they will not be subject to parliamentary or judicial oversight. Also, if these Policies do not adequately protect the environment and foster social outcomes, subsequent plans will be ‘locked in’ to growth-focused policies, rather than an integrated approach to ecologically sustainable development (ESD).

Similarly, we believe Regional Growth Plans should require balanced and ecologically sustainable development that promotes community wellbeing. The draft legislation gives authorities broad discretion on whether or not to incorporate environmental aims and targets, including native vegetation targets, biodiversity strategies and pollution limits. With significant time having been invested by agency resources and the community in developing environmental strategies and targets, we must ensure they are embedded in the planning system if we are serious about the idea of ‘evidence based, whole of government’ strategic planning.

Subregional Delivery Plans should build in urban sustainability, climate change responses, and a triple bottom line focus. Subregional Planning Boards should be required to exercise their functions to achieve ESD, as the new overarching planning objective.

Given the propopsed ‘line of sight’ through levels of strategic plans, the system needs to minimise the risk of top-down determinism in Local Plans – where local preferences could be shoe‑horned into pre-set State priorities. Also, the White Paper’s new approach to zoning (fewer, broader zones) and development guides requires further practical explanation and analysis. Any zoning system must ensure sensitive environmental and heritage areas are protected, particularly in translating existing protections under Local Environmental Plans.

Finally, communities may be sceptical of a strategic planning process that calls for upfront engagement and certainty on their part, while providing additional developer rights at the local level – to vary, ‘spot-rezone’ and appeal, or seek ‘strategic compatibility certificates’ to leapfrog the local planning phase. A more equitable approach would restore public trust.

On Thursday we turn from strategic planning to individual project assessment. How will the NSW Government achieve its bold vision for 80% of development approvals through code-based criteria, instead of giving the neighbours a say? Will the community and environment be at the centre or the periphery, and what safeguards will apply?

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

Five big challenges for the Planning White Paper – Challenge #2

NARI SAHUKAR*

Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

2. Community Participation Charter – inclusive but unenforceable?
The White Paper proposes to put public participation at the centre of planning – via a Community Participation Charter. The Charter concept is a welcome inclusion in the Bill, but firm details for this novel approach to public engagement have been left to future Community Participation Plans and guides. This may prove problematic in practice, given that consultation on 20-year regional plans has already started, and is moving rapidly, in areas like Sydney and the Lower Hunter.

What is principally concerning is that it may be impossible to enforce compliance with the Community Participation Charter. Part 2 of the draft Bill is devoted entirely to Community Participation, and it sounds encouraging – except that it’s undercut by a wide-ranging clause in Part 10 that reveals virtually all of it is ‘not mandatory’. This could mean that Community Participation Plans cannot be challenged if they don’t stack up to the Charter, even if they involve significant errors by decision makers.

A shift to upfront engagement certainly has its positives. But there is also a risk of overburdening the community – particularly when coming to grips with new approaches to strategic planning and development assessment (discussed in coming days), which radically alter the process of ‘having a say’. Motivating, upskilling and listening to a wide range of community members will require significant time, expertise and resources.

To ensure the legitimacy of this centrepiece of the reforms, the Community Participation Charter needs to be binding. The public need this assurance and accountability – that plan-makers will match the Charter’s intentions with actions. The Charter’s principles – and their implementation in community participation plans – should also ensure that people have the information, advice and input they need to plan the communities and environments they want to live in.

Wednesday’s post looks at Strategic Planning under the new system. Does the White Paper lay a path to resolving land-use conflicts and other 21st century challenges – growth, liveability and sustainability? Or does it risk locking-in an imbalanced approach upfront? 

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

Five big challenges for the Planning White Paper – Challenge #1

NARI SAHUKAR*

Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

Introduction
The NSW planning reforms are a landmark opportunity for a 21st century planning system – and the new laws could be passed in a matter of months. Looking at the 33-year legacy of the current Environmental Planning and Assessment Act, it could be mid-century before the next opportunity to influence the planning framework rolls around. So it pays to think now about the sorts of towns, cities, environment and infrastructure we want over the next three decades and beyond.

With less than six weeks left for consultations on the NSW Planning White Paper and draft legislation, time is short for the community to help shape the scaffolding of the new planning system.  For further information, see the EDO NSW White Paper briefing note, and more, on our new Planning Reforms webpage.

1. Objectives – a weakened approach to ‘sustainable development’
For two decades, NSW environmental and planning laws have included the guiding principles of ecologically sustainable development (ESD). Most of these principles will be consigned to history if the bold vision of the White Paper becomes a reality. This would be a significant retrograde step for environmental and social considerations in NSW planning decisions – from plan-making, to environmental assessment, approvals and conditions.

The first object in the exposure draft Planning Bill 2013 (NSW) is to promote ‘economic growth and environmental and social well-being through sustainable development’. Under the Bill, ‘Sustainable development is achieved by the integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development.’

This new, narrow definition of ‘sustainable development’ only briefly refers to two ESD concepts – the integration principle (‘of economic, environmental and social considerations’), and intergenerational equity (expressed in the Bill as considering ‘present and future needs’). Three other fundamental ESD principles have fallen off the agenda.

The new Planning Bill abolishes all reference to the precautionary principle (to deal with risk and scientific uncertainty[1]), biodiversity and ecological integrity as a fundamental consideration, and improved valuation, pricing and incentive mechanisms (including the polluter pays principle). These principles have been enacted in over 50 NSW laws, and many more across Australia and overseas. Two of Australia’s most recent planning overhauls – in Queensland (2009) and the ACT (2007) put ESD principles front and centre.

Our concern is not the change of name (from ESD to ‘sustainable development’), but with it the loss of an important decision making framework. A 21st century planning system needs to prioritise and implement Ecologically Sustainable Development and its principles, not a watered-down concept of integrated decision-making. Our submission will be that the Planning Bill needs to be amended – to place ESD at the apex of the planning system, and to apply its principles when making planning and development decisions under the law.

Check out Tuesday’s post for our view on community participation as set out in the new planning system White Paper. Will it be inclusive, ground-breaking, or ultimately unenforceable?

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.


[1] In brief, the precautionary principle is triggered if there is a risk of serious or irreversible harm to the environment, and there is scientific uncertainty as to whether that harm will occur. In such cases, the precautionary principle requires the developer or proponent to demonstrate its activities are sufficiently safe.

EPA requires BHP to stop polluting the George’s River

ELAINE JOHNSON*

Nine months after Macarthur Bushwalkers filed its case against BHP seeking orders to stop alleged pollution of the Georges River in the Illawarra, the NSW Environment Protection Authority (EPA) has required BHP to implement a program of works to protect this valuable river system.

While the Court case has been stalled pending the EPA’s decision, the notice issued to BHP by the EPA just before Anzac Day is a great outcome for the community and the environment, in more ways than one. Not only has the EPA decided that BHP must stop polluting, but in the process, the EPA actively engaged with the public, seeking written submissions and meeting with community representatives face to face.

The litigation
EDO NSW filed the case against Endeavour Coal and Illawarra Coal Holdings, subsidiaries of BHP Billiton, on behalf of the Macarthur Bushwalking and Cycling Club (MBCC). Illawarra Coal owns and operates BHP’s underground coal mine West Cliff Colliery, near Appin, and Endeavour Coal holds the environment protection licence for the mine.

MBCC brought the litigation because the community was concerned that a range of chemical toxicants including arsenic, zinc, copper, aluminium and nickel were being discharged into the Georges River from the West Cliff Colliery via Brennans Creek at levels well above the Australian and New Zealand Environment Conservation Council (ANZECC) Guidelines for healthy river systems.

The Georges River is vitally important to the Botany Bay Catchment. Its headwaters are located 60km south-west of Sydney in the town of Appin, and the river flows past BHP’s West Cliff Colliery, north towards Liverpool, then east towards Sydney before discharging into Botany Bay.

MBCC alleged that pollution from BHP’s mine had been discharged into the Georges River via Brennans Creek for more than 10 years, since January 2002. MBCC argued that the pollution wasn’t authorised by BHP’s environment protection licence, and was therefore in breach of the Protection of the Environment Operations Act 1997 which prohibits the pollution of waters.

The EPA’s decision
Just ten days after the case was filed in Court, the EPA issued a media release advising that it was looking to place limits on BHP’s licence with respect to salt and metals being discharged into Brennans Creek. This was formalised in September 2012, when BHP applied to vary its licence seeking limits for a number of key pollutants alleged in this case including aluminium, nickel, zinc, copper, arsenic, lead and salinity. BHP’s licence variation application, if granted, would effectively authorise much of the pollution alleged in the Court case. This meant that MBCC’s case was put on hold while the EPA made its decision.

After nine months of consultations and negotiations with BHP and the community, on 24 April 2013 the EPA determined BHP’s application by issuing a licence variation notice which sets limits for a range of pollutants including those alleged in MBCC’s case. In other words, the notice authorises that pollution. Because of this, MBCC’s case may not be able to continue.

However, the EPA also took the important step of requiring BHP to stop polluting. Under its licence, BHP is now required to carry out a program of works to achieve 95% species protection in Brennans Creek and the Georges River by December 2016. The EPA has also required ongoing monitoring of ecological impacts during this period while the works are being constructed.

The EPA’s notice states that the requirement that BHP stop polluting is to ‘ensure that measures are taken to protect the environment from harm’, and ‘to protect or restore the environmental values’ of Brennans Creek and the Georges River affected by the discharge that has already occurred. This is in effect one of the key remedies that MBCC was seeking through the Court case – orders to stop the alleged pollution – and as such represents a win for the community.

Community participation in pollution licensing – a precedent
Aside from the environmental outcomes achieved, it is important to consider the way in which the EPA came to its decision in this case.

Traditionally, licensing decisions have been made between the regulator and the licensee, with little (if any) public involvement. However, in this case, the EPA consulted with the public on BHP’s application, accepting public submissions, and meeting with community representatives to hear their views and receive advice from independent experts.

The EPA’s decision to involve the public in this licensing process serves as a valuable precedent for other licensing decisions, particularly where there are real concerns about actual or potential environmental harm, as was the case here. In this case, submissions made to the EPA included independent expert reports containing the results of water monitoring, assessment of ecological impacts and feasible treatment options. This case demonstrates the public’s ability to constructively contribute to licensing processes, and should encourage the EPA to open up its doors to the community when major decisions are being made about how to deal with pollution.

*Elaine Johnson is a Solicitor at EDO NSW

Image: Woolwash by Ken Hall, Australian Photography Tours (copyright)
Woolwash by Ken Hall, Australian Photography Tours (copyright)