1. Nature Conservation Council of NSW (NCC) - Planning System Review Online Survey

Thank you for agreeing to take part in the Nature Conservation Council of NSW - Planning System Review Online Survey.

The NCC will use the feedback from our member groups and other interested persons to draft a detailed response to the Planning System Review Issues Paper – The Way Ahead for Planning in NSW (“the Issues Paper”).

While the Issues Paper includes over 230 specific questions, this online survey seeks feedback on 40 general questions that target the key issues for our members and the environmental movement.

You do not need to complete every question. Each question is optional and answers can be submitted at any point in the survey by scrolling to the bottom and clicking 'done'.

We appreciate the time you take to provide your views and comments on your experiences of the NSW planning system.

NCC also encourages members of the community to visit the NSW Planning System Review website to download and read the Issues Paper and to consider making an individual submission directly to the Planning System Review by:
- Completing the submissions form on the Planning System Review Website: http://planningreview.nsw.gov.au/ or
- Posting your submission to the NSW Planning System Review, GPO Box 39, Sydney NSW 2001

Submissions will be accepted until midnight, Friday 17 February 2012.

We suggest you prepare your answers to this survey in a word document and then ‘cut and paste’ the answers into our online survey answer boxes. Your prepared answers can then be edited to form part of your individual submission that can be uploaded on the Planning system Review website. This survey contains cross references to the Issues Paper by identifying corresponding questions (for example [A1] refers to Question A1 of the Issues Paper.

Should you have any questions or concerns regarding the NCC Planning System Review Online Survey or the NSW Planning System Review, please do not hesitate to contact the NCC’s Planning Policy Officer, Cerin Loane on 9516 1488 or cloane@nccnsw.org.au

* 1. Name and/or Organisation

* 2. Contact details


* 3. Should ecologically sustainable development (ESD) be the overarching objective of the new planning legislation? [B2]

* 4. What other objectives should be included in the new planning legislation? [A1, B2]

Currently, there are no objectives in the Act to guide how processes are to occur. One idea put forward was that there should be specific ‘procedural’ objectives that would set a framework for the operation of a new planning system, for example, objectives such as transparency, due process and simplicity and procedural objectives such as the right to be heard, the right to have open and accessible determination processes and the right to be given reasons for decisions.

* 5. Should the new planning legislation identify procedural objectives, including transparency, public participation and accountability? [B5]

Regional strategies
Regional strategic planning aims to anticipate development patterns of a region. Regional strategic planning can address issues such as how to protect biodiversity and ecosystems, where to create employment to make travel times shorter and what community infrastructure to provide to create transport, health and education facilities for healthy, liveable settlement patterns.

Through strategic planning regions can be considered holistically, rather than in an ad hoc manner. This leads to better protection of biodiversity and ecosystems and allows for assessment of cumulative impacts.

The Department of Planning and Infrastructure has developed Regional Strategies for eight areas of regional NSW in partnership with state and local government, communities and business.

While Regional Strategies are useful in setting a clear direction for future growth in regional areas they have not been developed in a legislative framework that requires community consultation and, unlike local environmental plans, are not legally enforceable.

* 6. Should the new planning legislation provide a legal framework for regional strategic planning processes? [A6]

* 7. Should regional strategies be legally enforceable? [A7]

* 8. To which geographical regions should regional strategic plans apply – catchments or local government areas? [A6, C17]

* 9. Should new legislation prescribe a process for public participation in the development of regional plans? [C3]

* 10. Should regional strategic planning link in with natural resource management and how can this be achieved?

* 11. Who should be responsible for strategic planning? Should there be an independent State Planning Commission or Independent Planning Advisory Board to undertake strategic planning? [C1]

State Environmental Planning Policies (SEPPs)
State environment planning policies (SEPPs) are environmental planning instruments prepared by the Minister for Planning and the Department of Planning and Infrastructure. SEPPs can apply to the entire State or to specified land. SEPPs can override the provisions of other environmental planning instruments. There is no mandatory requirement for public participation for the preparation of SEPPs - community consultation is at the discretion of the Minister.

* 12. Should there be State environmental planning policies? [C18]

* 13. Should there be statutory public participation requirements when developing SEPPS? [C19]

Local Environment Plans (LEPs)
Local Environment Plans apply to either the whole, or part of, a local government area. LEPs govern local development by dividing areas into "zones", such as rural, residential, industrial, recreational, open space, environment protection and business zones and specifying the types of development that are permissible, permissible with consent or prohibited in each zone.

The process for making LEPs changed from 1 July 2009. LEPs that were proposed after this date follow the new ‘gateway’ process. A comprehensive explanation of the LEP making process is contained in the EDO Fact Sheet 2.1 which is available at: www.edo.org.au/edonsw/site/factsh/fs02_1_3a.php

Some key features of the ‘gateway’ process:
- Preparation of any environmental studies is at the Minister’s discretion
- Consultation with State and Commonwealth agencies is at the Minister’s discretion
- Community consultation is at the Minister’s discretion and is only at the preliminary stage – there is no mechanism for community consultation at the later stages of preparation.
- The Minister can decide whether a public hearing will be held.

* 14. What minimum environmental considerations should be taken into account when preparing an LEP? When should an environmental study be required?

* 15. How can the process of consulting with government agencies be improved during the LEP making process? [C27]

* 16. How can public participation and community consultation be improved during the LEP making process?

One concern raised during the initial submission period related to planning proposals for changes to zoning of land, in particular ‘spot rezoning’ which is usually in support of a particular development.

* 17. How should rezonings (planning proposals) be initiated? Should developers be permitted to initiate planning proposals for the rezoning of land? [C23]

* 18. Do you wish to make any additional comments with respect to strategic planning or plan making processes?

(For example, general views on the need for strategic planning at State, regional and local levels or how strategic planning can be better integrated with natural resource management and infrastructure development)

Environmental Impact Assessment
An issue that concerned both the community and some stakeholders during the initial stages of the Planning System Review was the reliability and validity of the information contained in environmental impact statements and assessment reports supplied by an applicant. A broad philosophical concern raised was that consultants hired by a proponent could never provide completely fearless and independent commentary.

* 19. Should environmental impact assessments be prepared by independent consultants at ‘arm’s length’ from the developer?

* 20. Should the new planning legislation contain a provision that would make it an offence to include deceptive or misleading conduct in an environmental impact assessment?

* 21. What other measures might be implemented in a new planning system to create public confidence in the integrity of environmental impact statements? [A21, D36]

Public participation in the development assessment process

* 22. What public notification requirements should there be for development applications? [D25]

* 23. How can community consultation during development assessment be improved? [D26]

Assessment Criteria

* 24. What changes, expansions or additions should be made to the present assessment criteria in the Planning Act? (Note: current assessment criteria is set out in section 79C of the Environmental Planning and Assessment Act 1979) [D38]

Additional comments on development assessment

* 25. Do you have any further questions on any of the issues raised by Part D of the Issues Paper (Development Proposals and Assessments)?


* 26. What should be the role of the Minister in a new planning system, in particular in determining development applications?

* 27. What should be the role of Councils in a new planning system, in particular in determining development applications?

* 28. What types or categories of development, if any, should be identified as regionally significant and be determined by a body other than the council? [D3]

Planning Assessment Commission (PAC)
The NSW Planning Assessment Commission (PAC) began operation in November 2008. Its functions are to determine project applications as delegated by the Minister for Planning and provide advice to the Minister on a range of planning and development matters. The Issues Paper raised a series of questions with respect to the operation of the PAC [Issues Paper D65-D69].

* 29. Have you had any first hand experience dealing with the PAC? If so, what, in your view, are the strengths and weaknesses of the PAC?

* 30. Do you wish to provide any feedback on the specific questions raised by the Questions D65-D69 of the Issues Paper?

Joint Regional Planning Panels (JRPPs)
Joint Regional Planning Panels (JRPPs) were established with the main function of determining regionally significant development applications. They also have other minor functions such as acting as the relevant planning authority for the purpose of preparing a local environmental plan when appointed to do so by the Minister for Planning. They can also provide advice on planning or development matters when requested to do so by the Minister. The Issues Paper raised a series of questions with respect to the operation of the PAC [Issues Paper D70-D80].

* 31. Have you had any first hand experience dealing with a JRPP? If so, what, in your view, are the strengths and weaknesses of JRPPs?

* 32. Do you wish to provide any feedback on the specific questions raised by the Questions D65-D69 of the Issues Paper?

Currently any person who makes a submission objecting to a development application for designated development is, in the event the development application is approved, entitled to bring a merits appeal in the Land and Environment Court within 28 days of receiving notification of the determination. These same objector appeal rights also exist with respect to decisions made by with Minister with respect to State significant development (SSD) and transitional Part 3A project determinations.
Objector appeals are not available:
- where the Planning Assessment Commission has held a public hearing
- for State significant infrastructure (SSI) applications; or
- for transitional Part 3A projects, the proponent is a public authority, it involves a critical infrastructure project, the Commission has reviewed the project or a concept plan has been approved.

* 33. In what circumstances should third party merit appeals be available? [E3]

The current planning legislation contains an ‘open standing’ provision which provides that any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. Any challenge to the legal validity of a development consent or complying development must be brought within 3 months of from the date on which public notice of the decision was given.

* 34. Should anyone be able to apply to the Court to restrain a breach of the Act? [E2]

* 35. How can the new planning legislation improve access to justice and access to the Courts?

The idea of public participation and community consultation is a common theme throughout the Issues Paper. Although questions are asked in relation to specific processes throughout the planning process, general questions are raised about improving community participation opportunities.

* 36. How can community participation opportunities be improved? [A9]

* 37. What can be done to ensure community ownership of a new planning system? [F3]

* 38. What changes can be put in place to ensure more effective cooperation between councils, government agencies, the community and developers within the planning system? [F5]

The Minister has specifically asked that the NSW Planning System Review consider and make recommendations relating to the integration of information technology and the planning system.

* 39. How can the new planning legislation make better use of information technology?


* 40. Do you wish to make any further comments with respect to any aspect of the Planning System Review and the issues raised by the Issues Paper?

Thank you for taking the time to complete the NCC Planning System Review Online Survey. Your views and comments are appreciated.