No developments for this quarter.
Planning reforms passed by Parliament: Environmental Planning and Assessment Act 2008, Building Professionals Amendment Act 2008 and Strata Management Legislation Amendment Act 2008
In the May 2008 edition of Environment Quarterly we reported on the New South Wales Government’s planning reforms. The reforms, consisting of the Environmental Planning and Assessment Act 2008 (NSW), Building Professionals Amendment Act 2008 (NSW) and Strata Management Legislation Amendment Act 2008 (NSW) (Acts), received assent on 25 June 2008 and will commence on a day to be set by proclamation.
The Acts introduce extensive planning reforms, including:
- Regional Environmental Plans (REPs) to be moved under the State Environmental Planning Policy (SEPP) umbrella, effectively allowing SEPPs to be made with respect to matters of state or regional environmental planning significance
- Environmental Planning Instruments will be able to zone land conditionally and contain provisions with time limitations
- the Minister for Planning is granted extensive powers and discretions in the making of SEPPs and Local Environmental Plans (LEPs)
- the process for making LEPs is significantly amended
- the circumstances which fall within the exempt and complying development categories are expanded
- establishing an independent Planning Assessment Commission which will consider about 80 per cent of major state developments, which are currently determined by the Minister for Planning
- creating independent Joint Regional Planning Panels (JRPPs) which will consider regionally significant developments
- establishing Independent Hearing and Assessment Panels, consisting of a panel of experts, which will advise Councils in relation to development applications
- amending the appeals processes for applicants and objectors with objectors given new appeal rights
- introducing the concepts of ‘Key Community Infrastructure’ and ‘Additional Community Infrastructure’ to the current developer contributions and planning agreement regime, and
- introducing new compulsory acquisition powers for paper subdivisions.
The expansion of exempt and complying development is supported by the development of Building Codes. A draft New South Wales Commercial Building Code (applying to commercial and industrial development) and Draft NSW Housing Code (applying to residential development) were on exhibition until 4 July 2008.
Political donations that fund planning submissions to be made public: Local Government and Planning Legislation Amendment (Political Donations) Bill 2008
The Local Government and Planning Legislation Amendment (Political Donations) Act 2008 (NSW) (LGP Act) proposes to amend the Environmental Planning and Assessment Act 1979 (NSW) and the Local Government Act 1993 (NSW) .
The LGP Act was assented to on 30 June 2008 and will commence on a day or days to be appointed by proclamation.
The LGP Act requires that anyone who makes a ‘relevant planning application’ or ‘relevant public submission’ must disclose all ‘reportable political donations’ made within a prescribed timeframe and by a person with a ‘financial interest’. The LGP Act defines these terms and sets out the requirements for the disclosure.
Property developer succeeds in striking down proposed Local Environment Plan: Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137
A property developer has obtained a NSW Land and Environment Court decision striking down a proposed new local environmental plan (LEP) for North Sydney.
North Sydney Council (council) publicly exhibited the draft LEP from 6 September 2007 to 4 October 2007. On 10 December 2007 the council forwarded the draft LEP to the Department of Planning for ministerial approval.
The applicant, Castle Constructions Pty Limited (company), proposed to develop a multi-storey mixed use building. The proposal would be allowed under the existing LEP but not the proposed draft LEP.
The company argued four grounds as to why the LEP-making process in this situation was invalid. Justice Lloyd agreed that the public exhibition process for the LEP was invalid. Justice Lloyd found that:
- not all relevant documents connected with the draft LEP had been exhibited
- the council failed to consider the public submissions properly, and
- the public exhibition process miscarried because the Council had made three misrepresentations relating to floor space calculations, the independence of a report and the rezoning of residential land.
Because of the three misrepresentations, Justice Lloyd held that the process was invalid.
Minister establishes interim External Advisory Panel for contentious developments
The Planning Minister announced on 30 April 2008 that an External Advisory Panel (EAP) has been established to provide independent advice to the Department of Planning on ‘contentious private sector development’.
The EAP is viewed as a ‘bridging step’ until the Planning Assessment Commission (PAC), to be established under the new planning reforms is fully operational. The PAC is still considered to be some months away.
Projects will be referred to the EAP if the Minister or the Director-General of the Department of Planning considers that a project may have:
- potential major environmental or amenity impacts
- a high level of community interest or controversy, or
- potential probity concerns.
On 21 July 2008 the Planning Minister announced it is seeking expressions of interest and nominations for the PAC and the Building Professionals Board (BPB). The BPB’s role is to promote and improve the quality of building and subdivision certification in New South Wales through the regulation and education of accredited certifiers. The closing date for submissions is 8 August 2008.
Reforms to the management of Victoria’s cultural heritage: Heritage Amendment Bill 2008
The Heritage Amendment Bill 2008 (HA Bill) seeks to amend the Heritage Act 1995 (VIC) (Heritage Act). The objective of the HA Bill is to further protect Victoria’s places and objects of cultural heritage. This will be achieved by making the following amendments to the Heritage Act:
- only requiring a single hearing prior the determination cultural heritage places or objects (currently two hearings may be required)
- creating an offence for failing to comply with conditions on a heritage permit
- abolishing the Historic Shipwrecks Advisory Committee, and
- allowing permit conditions that require payment of a security in order to receive the permit.
The changes are intended to reduce cost and delay in registering places or objects of cultural heritage. Furthermore, the new penalty and security provisions create an incentive for permittees to ensure that their practices comply with heritage permit conditions. The lack of statutory penalty for breach of a heritage permit condition was largely regarded as a legislative anomaly.
The HA Bill received a second reading in the Legislative Council on 31 July 2008.
The scope of VCAT’s jurisdiction to hear permit amendment applications and permit amendment applications containing a prohibited use: Popular Pastimes Pty Ltd v Melbourne CC [2008] VCAT 1184
A brothel owner (applicant) has successfully applied to the Victorian Civil and Administrative Tribunal (VCAT) to have its planning permit amended.
The applicant lodged an application to amend their permit under section 87A of the Planning and Environment Act 1987 (VIC), which allows amendments of permits issued at the direction of VCAT. The amendment was for the purpose of upgrading the building to provide better working conditions and increased amenity for patrons.
In deciding in the applicant’s favour, Deputy President Dwyer first had to consider the scope of section 87A. He concluded that:
- section 87A is not limited to circumstances where VCAT directed the grant of an initial permit. It also applies to the issue of an amended permit at the direction of VCAT (that is, after a previous section 87 or 87A application), and
- the reference to the ‘Tribunal’ in section 87A is a reference only to VCAT and not its statutory predecessors such as the former TPAT, Planning Appeals Board or AAT.
He then considered whether the pre-existing permit was incapable of amendment due to the use becoming prohibited. He reasoned that this could not be the case because:
- section 87A empowers VCAT to amend a permit ‘if it considers it appropriate to do so’, and
- the planning scheme contemplates the prospect of further buildings and works for established existing uses.
Finally, Deputy President Dwyer considered whether the use was ‘appropriate’. He concluded that the following factors suggested that the application was appropriate:
- the proposed work would not intensify or entrench the use
- the proposed work would not occur in a manner that would frustrate other planning objectives in the area
- the use as a brothel would not cease if the amendment was refused
- there was no evidence of adverse planning impacts for any dwellings within 100 metres of the brothel
- most of the proposed work was internal
- the proposed work would result in improved working conditions, and
- the proposed work would improve comfort and amenity for patrons.
The decision is significant because it clarifies the scope of a section 87A application to amend planning permits issued at the direction of VCAT, as well as clarifying how applications that involve now-prohibited existing uses are treated.
Climate change and sea level rise are relevant planning considerations: Gippsland Coastal Board v South Gippsland SC & Ors [2008] VCAT 1545
In a landmark decision, the Victorian Civil and Administrative Tribunal (tribunal) refused planning permission for a number of proposed private dwellings on land potentially affected by future sea level rise.
Although the tribunal based its decision on a number of grounds (including zoning, overlay and state planning policy grounds), of greatest interest is the tribunal’s consideration of the potential effects of climate change.
The proceedings concerned an appeal by the Gippsland Coastal Board (applicant) against a council decision to refuse construction of six private dwellings. Among other grounds, the applicant argued that the dwellings were inappropriate due to the risk of inundation posed by future sea level rise.
If the tribunal was to accept this argument, they had to make the following findings:
- that sea level rise and climate change were a valid planning consideration in determining whether a responsible authority should grant a planning permit, and
- that future inundation of the proposed dwellings was a reasonably foreseeable consequence of sea level rise.
How the tribunal made each of these findings is outlined below.
Sea level rise and climate change were relevant planning considerations
There were two key considerations in evaluating whether sea level rise and climate change were valid planning considerations. Firstly, neither consideration is expressly included within Victoria’s planning provisions.
Secondly, although there was a recent South Australian case which decided that sea level rise was valid in a planning context (see Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57 which was reported on in the previous Environment Quarterly), this case could be distinguished because the South Australian planning provisions expressly state that a planning authority must consider the effects of sea level rise in the first 100 years of a development’s lifespan. As mentioned above, this is not the case in Victoria.
Notwithstanding these issues, the tribunal concluded that the effects of climate change and sea level rise were valid considerations when assessing a planning permit application. It was held that the reference to the ‘environment’ in section 60(1)(e) of the Planning and Environment Act 1987 (which states that a responsible authority must consider the effects that the environment may have on a development) was wide enough to include the influences of climate change and sea level rise.
There was a reasonably foreseeable risk of inundation at the development sites
The tribunal suggested that planning permission should be refused if there was a reasonably foreseeable risk of inundation of the development site. Although not expressly stated in the judgment, this approach may have some legal benefit in protecting councils from future liability in negligence.
Although the tribunal did not doubt that ‘rising sea levels are to be expected’, a precise assessment of whether there was a reasonably foreseeable risk of inundation was difficult on the evidence tendered. Firstly, unlike the Northcape case, the tribunal did not have the benefit of scientific evidence as to the likelihood and effects of sea level rise. Secondly, the tribunal suggested that some form of modelling would be required to assess the risk, which was not provided. On this point, the tribunal noted that it is ‘no longer sufficient to rely only on what has gone before to assess what may happen again in the context of coastal processes, sea levels or … inundation.’
In light of the inability to properly quantify the risk, the tribunal thought that this was an appropriate case to apply the precautionary principle. The precautionary principle provides that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environment degradation. Taking this precautionary approach, development consent was refused for each of the six applications.
The tribunal concluded its reasoning by outlining that ‘[i]n the face of no urgent or overriding need for the dwellings to be located on this land, we cannot say that such a longer term and reasonably foreseeable risk is acceptable.’
Finally, it is understood that the Victorian Government is mapping parts of the coastline that are subject to inundation risk as a result of sea level rise. This work, once complete, may overcome some of the tribunal’s evidentiary challenges in this case. The mapping results may also be incorporated into Victorian planning schemes, giving landowners greater clarify about the development opportunities and constraints for their coastal properties, and responsible authorities clearer guidance on how to go about assessing planning applications in coastal areas.
Far North Queensland draft regional plan released
The Queensland Government has released the Draft Far North Queensland Regional Plan 2025 (draft plan), which aims to guide and manage development within the region in a manner that realises key environmental, social, economic and urban objectives for the future.
The draft plan will apply to the following local governments in the region:
- Cairns Regional Council
- Tablelands Regional Council
- Cassowary Coast Regional Council
- Yarrabah Aboriginal Council, and
- Wujal Wujal Aboriginal Council.
Against a backdrop of serious concern regarding the regional impact of climate change and peak oil, the draft plan sets out the regional policy in the areas of:
- natural environment
- regional landscape and natural resources
- strong communities
- urban development
- economic development
- infrastructure
- water management, and
- transport.
These policies will guide regional planning and development assessment on the issues addressed within the draft plan. Submissions on the draft plan will be accepted by Department of Infrastructure and Planning until 8 August 2008.
No developments for this quarter.
Significant reforms scheduled for South Australia’s planning system
On 10 June 2008, the South Australian Government announced its intention to implement a number of reforms to its planning system. Key elements of the strategy include:
- including a 30-year plan to manage growth in Adelaide within the South Australian Planning Strategy
- creating five regional plans to manage growth outside of Adelaide
- establishing transport corridors in Adelaide
- ensuring a 25-year rolling supply of broad acre land linked to the transport corridors
- providing a clearer alignment between the South Australian Planning Strategy and local plans
- linking with planning with infrastructure development
- removing minor matters from the planning system, and
- streamlining residential development through the introduction of a Residential Code.
The reforms will have a major impact on planning law in South Australia. Economically, it has been estimated that the reforms will contribute an additional $5 billion to gross state product, and reduce regulatory compliance costs by approximately $75.6 million, within five years.
No developments for this quarter.
Proposal that planning laws should not to restart if large projects need to shift location: Projects of Territory Importance Bill 2008
The Projects of Territory Importance Bill 2008 (POTI Bill) received a first reading in the Legislative Assembly on 7 May 2008. The POTI Bill aims to shorten the planning approvals process when a ‘Project of Territory Importance’ needs to be shifted from one location to another. It is thought that the current system (under which the planning process would need to be restarted if a major project needed to be shifted) is inefficient and discourages significant investment into the ACT.
A Project of Territory Importance carries a relatively loose definition in the POTI Bill, and includes any project that has a major impact within the ACT, whether because it encourages substantial capital investment, or provides critical infrastructure. Any project can also be included in the definition by regulations.
If substantial progress has been made in gaining development approval for the Project of Territory Importance and the project can no longer continue at that location, the proponent can apply for a ‘Certificate of Importance’. The Certificate of Importance alters the applicable planning law to the extent outlined in the certificate. The decision to issue a certificate is not reviewable.
If passed, the POTI Bill may be significant in reducing the risk of major project failure due to the planning approval process.
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