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.

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5 thoughts on “Five big challenges for the Planning White Paper – Challenge #1

  1. I know I’m getting ahead of the sequence here, but this may be useful feedback when you get to Theme 6 – Building regulation and certification – I see two issues:

    1. BASIX – as your EDO NSW Preliminary Briefing Note and Key Issues Summary notes, this has not been updated since 2006. Thermal performance of residential buildings currently sits between 4 and 5 stars (equivalent – BASIX cleverly caps heating and cooling loads separately), with some examples showing barely 3 star compliance. Other states use the National Construction Code and achieve a 6 star rating, albeit with the ability to trade one season’s good performance off against poor performance in the other.

    Dept of Planning has had a “6 star ready” upgrade of BASIX in the wings for nearly a year, but it is deeply flawed. HIA and MBA have pressured to keep it from being gazetted. Not sure how to get the gov’t to review the upgrade, or if it is better to encourage them to do the upgrade and accept the imperfections.

    2. Certification – this is currently a dog’s breakfast, with the fox in charge of the chickens: no fundamental separation of enforcer from the enforcee who pays the enforcer. There are now so few PCAs (certifiers) operating that the good ones have massive backlogs, and only the shoddy ones get through the work by doing drive-bys, or demanding certification by third parties such as architects and builders – on their own work!

  2. Pingback: Five big challenges for the Planning White Paper – Challenge #2 | EDO NSW – Blog

  3. Pingback: Five big challenges for the Planning White Paper – Challenge #5 | EDO NSW – Blog

  4. Pingback: Five big challenges for the Planning White Paper – Challenge #4 | EDO NSW – Blog

  5. Pingback: Five big challenges for the Planning White Paper – Challenge #3 | EDO NSW – Blog

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