Better, Faster, Smarter - Parliament of NSW · Better, Faster, Smarter: Property Council of...

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Better, Faster, Smarter

A submission to the NSW Government

on the Improving the NSW Planning System

Discussion Paper

Property Council of Australia – 8 February 2008

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Better, Faster Smarter: Property Council of Australia submission on NSW Planning Reforms

Executive Summary

The Property Council of Australia welcomes the opportunity to provide this submission to the NSW Government in response to the Improving the NSW Planning System Discussion Paper released for public exhibition on 29 November 2007. This complements our preliminary submission dated 19 December 2007.

We have also made previous submissions on the current round of planning reforms including a comprehensive submission in June 2007 and a submission on the Kibble Review of the Heritage Act 1977 in October 2007. In addition, we have made contributions as a member of the NSW Coalition for Planning Reform which comprises 15 leading professional, industry and business groups.

The Property Council of Australia is the peak national representative of the property industry. Our members help shape, build and finance our cities and have a long-term interest in the future of our urban areas and communities.

Our members include the bulk of the state’s investors and owners in office buildings, shopping centres, industrial parks, tourism accommodation and infrastructure, and major developers of commercial, industrial and residential property. Our members are key customers and stakeholders of the NSW planning system.

The Property Council has prepared 86 recommendations on draft reform proposals we consider require

amendment and strengthening. We have also made recommendations where we consider there are gaps or omissions in the Discussion Paper including the extremely important issue of state agency concurrences and development levies.

Also attached is a report titled Unclogging the NSW Planning System: Solutions to remove red tape, reduce costs and reform exempt and complying development prepared for the Property Council by the respected firm JBA Urban Planning Consultants + TCW Consulting to support our recommendations on exempt and complying development.

Our recommendations aim to address and improve various key public policy issues and outcomes: housing

affordability, innovation, sustainability, public awareness, community participation and of course, a better decision making process in the planning system based on principles of good public administration.

In this regard, we are encouraged that the Council of Australian Governments’ (COAG) Communique released by Prime Minister Kevin Rudd on 20 December 2007 highlighted the critical link between a more streamlined DA process and improved housing affordability as a key national action item. The first meeting of the COAG Housing Working Group held on 31 January 2008 has taken the next step and committed to reducing planning delays (and developer charges) through the Commonwealth’s new $500 million Housing

Affordability Fund.

We strongly commend NSW Planning Minister the Hon Frank Sartor MP and the Department of Planning on leading the public policy process and developing such a comprehensive draft reform package. This has enabled all interested parties to assess and evaluate the proposals in reasonable detail.

We strongly support key elements of the draft reform package including:

• The prescription of improvement targets for key performance areas including reducing the number of DAs by 50% and overall processing times by a third.

• The ‘Principles for a better system’ including sustainability, transparency and consistency.

• The case for planning reform is strong and well documented.

• The reform timetable including the legislative program and July 2008 commencement date.

• The intent to reduce red tape through a major rationalisation of state agency concurrences.

• A broad range of the proposed reforms such as the establishment of a Planning Assessment Commission (PAC) and Joint Regional Planning Panels (JRPPs), the statewide mandatory default code for complying development prepared by an Expert Panel and the e-Planning roadmap.

We are encouraged that despite different perspectives and critiques, all interested parties appear to agree that the planning system needs a major overhaul.

Independent research conducted for the Property Council in 2007 by UMR Research highlights that the community believes planning is the worst area of overall performance in NSW local councils and supports the establishment of independent planning panels as a key area of reform (see details at section 4.2).

We believe the planning system is fast becoming a competitive disadvantage for the State of NSW.

The risk and uncertainty associated with the current system is discouraging development, business activity

and economic development. The planning system – aside from selective instruments such as the new Infrastructure SEPP - also impairs the efficient and effective delivery of the various priorities and targets in the State Plan – A New Direction for NSW and regional planning strategies.

Better, Faster, Smarter: Property Council of Australia submission on Improving the NSW Planning System

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Cont:

The planning system is too complex, slow and costly at a time where housing starts are at near 50-year lows and still trending downwards (ABS) and parts of the state feature near the top of worldwide housing unaffordability lists (Demographia 2008). Local level decisions on housing and job creating projects are

increasingly politicised and devoid of basic good decision making principles such as elected councillors

providing reasons for decisions (ref: NSW Ombudsman) or a sound understanding of the implications of decisions (or indeed, indecision).

Fundamental problems include:

1. As a public process, the divorce from principles of good decision-making, efficiency and quality customer service.

2. As a public system, the divorce from issues such as housing affordability, job creation and harnessing increased sustainability.

3. Meaningless statutory timeframes and a lack of on ongoing performance monitoring and indicators to prompt reform when things are going wrong and need improvement.

4. The protectionist approach of certain interests who stand in the way of real reform and fear monger on claims that the system is full of “developers” (despite 97% of applications being small household and business projects), that reform undermines “local democracy” and that the “community” is best served through continuing with current approaches and the blame game.

A snapshot of our members’ experiences with the DA system paints a disturbing scenario: 200+ day delays

on multi-million dollar housing and job creating projects; $12,500 printing costs for DA documentation; six weeks to allocate a planner to assess an application due to staff shortages; local council elections delaying decisions for many weeks and resulting in a changed decision making environment; and council refusal of projects in contradiction of consistent staff, expert and IHAP advice – and ultimately Land and Environment Court approval.

Original analysis conducted by the Property Council for this submission also highlights that (based on latest available figures) development assessment across the state is slowest for proposals valued between $5

million - $20 million. The mean gross determination time for such proposals is 158 days – however 28 NSW councils are above this group average including Leichhardt (500+ days), Burwood (500+ days), Canterbury (450+ days), Shellharbour (400+ days), Woollahra (350+ days), Gosford (300+ days) and Maitland (300+ days) councils (refer to Tables 6, 7 and 8 in chapter four). This is highly inadequate for such proposals and justifies the underlying rationalise for key proposed planning reforms (see key recommendations below).

Current problems will worsen if left unchecked given the state’s development projections and growth challenges, as well as the increasing pressures and competing demands facing NSW local councils.

Professor Percy Allen’s 2007 study into the financial sustainability of the state’s largest 96 councils found that only one in four councils is financially sustainable based on projected financial and infrastructure conditions out to 2015-16.

The Property Council believes that failure to commit to and implement a reform program in a timely manner will continue to have a drag effect on the state’s economic growth and the ability of local councils to best represent their constituents through a focus on strategic issues. Failure on planning reform will also impair the ability for NSW to maximise the potential from the COAG Housing Working Group’s reform agenda noted

above.

The Property Council’s key recommendations include:

1. Enshrine improvement targets for key performance areas in a clear NSW Government statement and consider incorporation into the NSW State Plan – A New Direction for NSW when it is reviewed and updated.

2. Establish the proposed Planning Assessment Commission (PAC) with scope to determine state significant rezoning and major projects not considered to be critical infrastructure to improve

transparency and independence and reduce the current and long-term project assessment burden on the Minister for Planning.

3. Establish Joint Regional Planning Panels (JRPPs) to determine regionally significant private sector projects valued over $10 million, not the proposed $50 million threshold which would only cover around 26 projects per annum. Key supporting elements should include community consultation requirements superior to current standard practice, a cost-recovery fee-schedule, a mandatory Code of Conduct for a Panel and its members (similar to the SA experience) and a public commitment to an independent first year review.

4. Develop a voluntary state-wide sustainability incentives policy to complement BASIX to drive and accelerate best practice beyond minimum regulatory compliance.


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5. Rationalise state agency concurrences. They should be subject to a 20 day deemed approval period inclusive of a 10 day deadline for requests for more information from an applicant. Standard consent conditions should be prepared and publicly exhibited. There should be annual public reporting

on state agency performance.

6. Ensure that 50% of the state’s development proposals are exempt or complying development within three years from the commencement of a new state wide code. Limited merit assessment should be introduced for complying development and assessed (e.g. heritage issues) by newly accredited professionals under the BPB scheme such as registered architects, certified practicing planners and heritage consultants.

7. Implement the proposed LEP gateway process but also introduce a new non-complying development category requiring full merit assessment and concurrence from the PAC through the DA

process recognising that spot rezoning is an inefficient way to assess such projects.

8. Abandon proposals to limit an applicant’s right and ability to enter into a commercial agreement with a preferred private certifier.

9. Abandon proposals to limit section 96 modifications.

10. Do not extend state infrastructure levies into metropolitan infill or regional areas. Improve transparency and spending of local council section 94 levies and consider a review of the section 94 structure and methodology to improve consistency. Consider using US style Tax Increment Financing

arrangements as better way to finance local infrastructure.

11. Establish a Ministerial Reference Group comprising relevant stakeholders to advise and oversee the implementation of the reforms.

12. Ensure planning reform implementation is properly funded and resourced including consideration of out-sourcing certain actions. Further, a comprehensive communications plan should be developed and executed.

13. Commit to a local government reform program as the logical next step to create a stronger and

more efficient local government sector commencing with a public review using the 2000 Sproats Review as a model which would include public submissions, benchmark interstate and international examples, conduct hearings and deliver a report within 12 months.

The Property Council appreciates the opportunity to provide this submission.

We would be pleased to discuss our recommendations with the NSW Government and assist in the reform process wherever we can.


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1. Summary of recommendations

The Property Council makes the following recommendations for the NSW Government’s consideration:

Planning improvement targets

1. Enshrine the proposed improvement targets for key performance areas in a clear NSW Government policy statement and incorporate them into the NSW State Plan – A New Direction for NSW when it is next reviewed and updated.

2. Planning system improvement targets should also be incorporated into the Department of Planning’s Corporate Plan and Results and Services Plan.

Establish the proposed Planning Assessment Commission (PAC)

3. Establish the proposed PAC to commence from 1 July 2008 with a scope to determine state significant

rezoning proposals and major projects not considered to be critical infrastructure to improve transparency and independence and reduce the project assessment burden on the Minister for Planning. There should be no greater than a ninety day assessment for project applications and consideration of a deemed approval period.

4. Introduce efficient determination timeframes for proposals with combined state significant site listings and project applications.

5. In relation to proposed assessment timeframes, establish a corresponding standard deadline for

requests for additional information and if the deadline passes, there should be a default confirmation that an application contains sufficient information to complete the assessment.

6. Constitute the PAC under legislation with appropriate functions and powers.

7. The Chair of the PAC should have skills and experience in planning, development and sustainability matters and as per similar Government positions, appointed by the Minister or Governor for a set tenure.

8. PAC members should be available on a rotational basis and have skills and expertise in areas critical to the relevant project including planning, architecture, urban design, urban economics, development,

traffic, infrastructure, sustainability, heritage and environmental impact.

9. Establish an adequately resourced PAC Secretariat to service the PAC and relevant activities.

10. Prepare and enforce guidelines which detail the PAC’s operational procedures including meetings, pre-DA meetings for applicants, hearings for applicants, timely referral of applications to the PAC, opportunities for applicants to present, clear and certain requirements for requests for additional information, a cost-recovery fee schedule, providing reasons for decisions and community consultation requirements.

11. Empower the Department of Planning’s legal branch to draft SEPPs rather than the sole reliance on the Parliamentary Counsel’s Office.

12. Develop a mandatory Code of Conduct for the PAC and its members to ensure transparency and accountability (similar to the SA Code of Conduct for Development Assessment Panels).

13. Create a separate PAC website to ensure information access and transparency on the PAC’s activities.

14. Publish an annual report on the PAC and its activities.

15. Commit to a one-year independent review of the PAC and its activities.

Establish Joint Regional Planning Panels (JRPPs)

16. Establish Joint Regional Planning Panels (JRPP) under legislation to determine regionally significant private sector projects valued over $10 million and certain LEPs. The proposed $50 million threshold is too high as it would only cover around 26 projects per annum. There should be no greater than a ninety day assessment for development applications and consideration of a deemed approval period.

17. Establish the first JRPPs in key growth areas of the Hunter, Central Coast, Illawarra and four panels across the Sydney metropolitan area by 1 July 2008.

18. Introduce efficient determination timeframes for proposals with combined rezoning and development applications.

19. In relation to proposed assessment timeframes, establish a corresponding standard deadline for requests for additional information and if the deadline passes, there should be a default confirmation that an application contains sufficient information to complete the assessment.


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20. JRPP membership should comprise three independent state appointees appointed by the Minister for Planning and two local council appointees from the local government area subject of the relevant development proposal. The Minister should advertise and seek expressions of interest from suitably

qualified people to sit on JRPPs.

21. JRPP chairs and members should have appropriate skills and expertise in areas critical to the relevant project including planning, architecture, urban design, urban economics, development, traffic, infrastructure, sustainability, heritage and environmental impact.

22. Prepare and enforce standard guidelines which outline details about JRPP operational procedures including meetings, pre-DA meetings for applicants, hearings for applicants, timely referral of applications to the JRPP, opportunities for applicants to present, clear and certain requirements for requests for additional information, a cost-recovery fee schedule, providing reasons for decisions and

community consultation requirements.

23. Develop a mandatory Code of Conduct for JRPPs and their members to ensure transparency and accountability (similar to the SA Code of Conduct for Development Assessment Panels).

24. Applicants should lodge JRPP applications with the relevant council to maintain consistency with existing application processes. Council staff would then prepare their report on the application in the normal manner before applications are referred to the relevant JRPP for determination.

25. Enable JRPPs to delegate the determination of all or part of a development application to council

officers.

26. Where a council is unable to resource the efficient and effective assessment of an application in the initial establishment regions of Sydney, Hunter, Illawarra and the Central Coast, consideration should be given to outsourcing the assessment and preparation of advice and recommendations to the JRPP.

27. Commit to an independent one-year review of the JRPP framework, established JRPPs and their activities.

Drive and accelerate increased sustainability

28. Develop a voluntary statewide sustainable incentives policy (BASIX Plus) to complement the Building Sustainability Index (BASIX) to drive and accelerate best practice beyond minimum regulatory compliance.

Rationalise state agency concurrences

29. The number of state agency concurrences matters should be decreased.

30. State agency concurrences should be subject to a 20 day deemed approval period.

31. State agencies should have no more than a 10 day period from lodgement to request further

information. If the deadline passes with no formal request, there should be a default confirmation that the application contains sufficient information to complete the assessment.

32. Increase clarity and certainty of requests for additional information (within a new 10 day timeframe) and the reasons for such requests through a standard guideline for agencies.

33. State agencies should immediately draft a standard set of consent conditions for public exhibition by 1 May 2008.

34. Clear and justifiable reasons should be provided for concurrence approvals and refusals.

35. Publicly report on state agency concurrence performance on an annual basis.

Ensure 50% of all proposals are Exempt or Complying Development

As per the JBA Urban Planning Consultants + TCW Consulting report prepared for the Property Council (attached for reference):

36. 50% of the state’s annual development proposals should be exempt or complying development within three years from the commencement of a new standard state wide code.

37. Review and consolidate the existing ‘eligibility’ criteria for exempt and complying development under

the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Standard Instrument into a single coordinated list for exempt and complying development.


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38. Develop a new statewide exempt and complying development code and implemented via a new SEPP. The standard schedules should be based on the Development Assessment Forum’s (DAF) “exempt” and “self assess” tracked and be applied consistently across NSW. The Complying Development Experts

Panel (CDEP) should be established immediately to assist in developing new statewide codes.

39. Incorporate the statewide exempt and complying code into the Standard Instrument as adopted over time.

40. Introduce the new concept of “merit assessment” for certain complying development, where the level of assessment is relevant to the complexity of the development and its impact on the environment. This would occur through the introduction of the new complying development code which would be augmented by performance-based measures. This Code would apply to land subject to environmental constraints and/or to facilitate tailoring to local circumstances. Applications using the merit assessment

approach should be determined within 14 days of lodgement.

41. Improve accountability of private certifiers providing the Building Professionals Board (BPB) with increased capacity and powers for investigation, enforcement and publicity of results. In addition and to facilitate certification of complying development under the new “merit assessment regime”, accreditation under this Scheme would be extended to town planning, urban design and heritage professionals.

42. Introduce standard mandatory notification requirements for complying development and extend existing

notification periods.

43. Utilise e-planning as a mechanism to facilitate identification of “eligibility” to use the exempt or complying development regime, and to confirm provisions and requirements for complying development.

44. Strengthen annual data collection and performance monitoring to ensure information is gathered, analysed and reported in relation to the achievement of the 50% performance measure and foundation principles.

Rationalise land use plans and plan making

45. Implement the proposed reforms to tailor plan making and approval to the scale, risk and complexity of land use changes, reduce average processing time by 50% and improve state agency referrals and certification of plans.

46. Introduce the proposed new LEP gateway screening process however ensure it is more transparent that the current LEP Review Panel process. Proponents should be able to present to the Panel and be provided with reasons for decisions.

47. Increase certainty in the very subjective nature of the current tests under the proposed justification report.

48. Require councils to be more efficient in progressing to the section 54 stage of the LEP process which can currently take up to three years to obtain a council resolution. Consider a maximum timeframe for this process such as 12 months.

49. Rationalise the requirements for environmental studies. Clear justification should be provided for requiring environmental studies rather than current experiences where studies are required with no

clear rationale or understanding of desired outcome.

50. Remove the Parliamentary Counsel’s (PC) Office from the LEP process and empower the Department of Planning’s legal branch to prepare LEPs. Potential exceptions for the PC’s office could be comprehensive, local-government wide LEPs.

51. Introduce an appeal mechanism in the LEP process.

52. Continue to rationalise SEPPs and REPs as per previous planning reforms.

53. Implement and enforce requirements under previous planning reforms to standardise Development

Control Plans (DCPs) and the application of one DCP per lot of land.

54. Improve regulatory practice for making LEPs and DCPs to ensure all opportunities to reduce red tape

are addressed (e.g. unnecessary concurrences) and regulatory and economic analysis is undertaken for major policy proposals.


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A better method to deal with non-complying development proposals

55. Leverage South Australia’s example and introduce a new non-complying development assessment stream requiring full merit assessment by the Council or JRPP (as appropriate) and concurrence from

the PAC recognising that spot rezoning is an inefficient way to assess such projects and encourage

innovation.

Alternative measures to improve private certification

56. Abandon the proposals that seek to limit an applicant’s right and ability to enter into a commercial agreement with a preferred private certifier.

57. Abandon the proposal for the BPB to allocate accredited certifiers for large or complex projects subject to the right of developers to reject the first two certifiers allocated.

58. Strengthen the private certification system through increasing the BPB’s capacity and powers to audit,

investigate, undertake disciplinary action and enforce and publicly report on the accreditation scheme and certifiers.

59. Accelerate the extension of the accreditation scheme to local government certifiers.

60. Implement communication and public awareness campaign to highlight the extremely important role of certifiers in making the built environment safe and healthy in accordance with strict standards such as the Building Code of Australia and Australian / New Zealand Standards.

Make DA timeframes meaningful through deemed approval

61. Abandon the proposed ‘deemed refusal’ periods as they will not address current problems of lack of accountability through indecision and deemed refusals associated with current timeframes.

62. Implement the proposed ten, twenty, forty, sixty and ninety day assessment periods as deemed approval periods with a staged deadline (e.g. within 10 days) for requests for more information and further, when a request is not forthcoming there should be a default confirmation that sufficient information has been provided.

Abandon limitations to Section 96 modifications

63. Abandon the proposal to limit the number of section 96 modifications that can be granted for a project as this would be extremely unreasonable.

64. If the desire to limit section 96 modifications proceeds, all consent modifications should be treated as complying development and covered under the proposed new statewide complying development code.

65. If limitations to section 96 modifications proceed, all development consent conditions should be subject to the principle of “generally in accordance with…” to increase flexibility and reduce the restrictive nature of current consent conditions which are a key reason for the need for numerous section 96

applications.

No new state infrastructure levies

66. Do not impose new state infrastructure levies in metropolitan infill or regional areas.

67. Consult with industry and provide further details prior to releasing further policies and information in relation to infrastructure levies.

68. Improve transparency of local council section 94 levies and require levies to be spent within a set timeframe.

69. Consider a detailed review of the current section 94 structure and funding methodology including the investigation of a mandatory standard flat percentage levy to reduce variations and improve consistency and incentives or trade-offs for projects that demonstrate excellence in environmental protection and sustainability.

70. Consider using US style Tax Increment Financing arrangements as a better way to finance local infrastructure, particularly in metropolitan infill areas.

Accelerate the e-Planning Roadmap

71. Immediately implement the proposed e-Planning reforms.

Paper subdivisions

72. Implement the proposed paper subdivision reforms including new legislative powers to facilitate the development of areas currently largely incapable of development.


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Development assessment

73. Reinforce the hierarchy of planning instruments to prevent local councils adding layers and going beyond state requirements where appropriate policies and frameworks are already in place. This

includes local requirements for minimum apartment sizes inconsistent with SEPP 65 and local proposals

to go beyond BASIX.

74. Increase certainty for applicants so that where matters required to be considered are addressed in a development or project application, there is no opportunity for third party appeals based on what are essentially merit issues.

75. Do not extend third party appeal rights to any new development categories or development assessment streams including Part 4 applications.

76. Increase standardisation and consistency in the development assessment process including for various

matters including temporary sales offices, temporary advertising, staged approvals for high-rise buildings, on-site construction hours, deep soil planting and car parking requirements based on distance to public transport.

Strata title and management reform

77. Do not implement proposed changes to strata management arrangements unless a developer or original building owner has an opportunity for fair representation. This includes circumstances where a developer or owner still has a legitimate interest in the property through vendor finance and loan

arrangements.

78. Reform strata title laws to enable a strata scheme to be dissolved in a more efficient manner at the end of a building’s life instead of the existing unanimous agreement requirement.

Local government reform

79. Commit to local government reform program to create a stronger and more efficient local government sector commencing with a public review using the 2000 Sproats Review as a model which would include public submissions, benchmark interstate and international examples, conduct hearings and deliver a

report within 12 months.

Implementation of reforms

80. Adhere to the proposed implementation timeframes including the proposed Draft Exposure Bill to be tabled into Parliament in March and commencement of the reforms from 1 July 2008.

81. Establish a Ministerial Reference Group comprising relevant stakeholders and experts to oversee the implementation of reforms.

82. Remove unnecessary procedural elements from the Act (e.g. LEP making) but underwrite the reforms in

legislation and not in Ministerial and Departmental guidelines.

83. Prepare and execute a comprehensive communications plan for the reforms to improve public awareness. This should include an education program (e.g. roadshows) and a new plain English guide to the EP&A Act and LG Act to improve understanding of the planning system including roles and responsibilities.

84. Ensure planning reform implementation – as well as monitoring and evaluation - is properly funded and resourced commencing with the Department of Planning’s 2007-08 Budget bids and preparation. Out-

sourcing certain reform actions to the private sector should be seriously considered to assist with timely delivery.

85. Instruct the Independent Pricing and Regulatory Tribunal (IPART) to conduct a review of current and proposed planning system fees. The review should consider a statewide fee structure, appropriate fee for service based on the public value of planning regulation, fee caps (particularly for state significant projects) and the planning system and linkages with performance and efficiency.

86. Continue to improve planning system performance monitoring through annual data collection and public

reporting including the performance of the Department of Planning, state agencies involved with plan making and concurrences, and local councils.

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Table of contents

Page

Executive Summary 2

1. Summary of recommendations

5

2. Planning reform in context

2.1 NSW State Plan – A new direction for NSW

2.2 Housing affordability and the COAG 2008 action plan

2.3 Metropolitan and regional strategies

2.4 Regulatory reform and red tape reduction

2.5 Development Assessment Forum (DAF)

2.6 Damning critiques – ICAC, Percy Allen, Productivity Commission

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3. Planning improvement targets

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4. Planning panels

4.1 The problems with a lack of separation of powers

4.2 Independent community survey: planning panels

4.3 Establish the proposed Planning Assessment Commission (PAC)

4.4 Establish Joint Regional Planning Panels (JRPPs)

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5. Drive and accelerate increased sustainability

6. Rationalise state agency concurrences

7. Ensure 50% of all proposal are exempt or complying development

8. Rationalise land use plans and plan making

9. A better method to deal with non-complying development proposals

10. Alternative measures to improve private certification

11. Make DA timeframes meaningful through deemed approval

12. Abandon limitations to Section 96 modifications

13. No new state infrastructure levies

14. Other reforms

14.1 Accelerate the e-Planning roadmap

14.2 Paper subdivisions

14.3 Development assessment

14.4 Strata title and management reform

14.5 Commit to local government reform

15. Implementation of the reforms

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16. Next steps

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17. Contact

Attachment 1:

JBA Urban Planning Consultants + TCW Consulting – Unclogging the NSW Planning System: Solutions to remove red tape, reduce costs and reform exempt and complying development

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2. Planning reform in context Planning reform sits in context with a range of important public policies and issues.

2.1 NSW State Plan – A new direction for NSW The NSW Government’s State Plan – A new direction for NSW was launched by Premier Morris Iemma in November 2006. The Plan identifies goals, priorities and targets under the following key activity areas for the Government:

• Rights, Respect and Responsibility, • Delivering Better Services, • Fairness and Opportunity, • Growing Prosperity Across NSW, and • Environment For Living.

Planning reform is consistent with achieving the priorities and targets under the State Plan including: P1 – Increased business investment; P3 – Reducing the regulatory burden on business; S8 – Measure, report and improve customer satisfaction with Government services; E5 – Jobs closer to home; and E6 – Ensure a supply of land and a mix of housing that meets demand. 2.2 Housing affordability and the COAG 2008 action plan

The first COAG meeting held in December 2007 under Prime Minister Kevin Rudd heralded a new era of national consensus on a range of important issues. In particular, we are encouraged that the COAG Communique released on 20 December 2007 highlighted the critical link between a more streamlined DA

process and improved housing affordability as a key national action item. This itself highlights the importance of planning and development assessment reform as a national issue. The first meeting of the COAG Housing Working Group held on 31 January 2008 has taken the next step and committed to reducing planning delays (and developer charges) through the Commonwealth’s new $500

million Housing Affordability Fund. The NSW planning reforms will be a key component of this process and we believe, a likely condition for NSW to obtain Commonwealth funds targeted at improving housing affordability. 2.3 Metropolitan and regional strategies The Metropolitan Strategy City of Cities – A Plan for Sydney’s Future was released in December 2005. The

Government has also released planning strategies for other key growth areas including the Far North Coast, Mid-North Coast, North Coast, Lower Hunter and Illawarra and South Coast. In the case of the Metropolitan Strategy, the Government has predicted that 640,000 new homes, 6.8 million square metres of additional commercial floor space and 3.7 million square metres of additional retail space will be required over the next 25 years. Planning reform is critical to ensure the efficient and cost-effective delivery of these urban growth policies.

These requirements will only be met through new developments that will be subject to assessment and approval through the DA system. However, the DA system currently presents a barrier to development and thus, the achievement of these requirements. This is particularly the case given the increased complexity and politicisation of development assessment and the appeal of investment opportunities in other States and jurisdictions. 2.4 Regulatory reform and red tape reduction

The NSW Government has established the Office of Better Regulation and made a number of commitments to improve regulatory efficiency and reduce red tape in response to IPART’s Final Report (November 2006) Investigation into the burden of regulation in NSW and improving regulatory efficiency. IPART noted that unnecessary regulatory burdens on business have lead to uncertainty, unintended consequences, inconsistency and duplication, regulatory creep, excessive requirements and delays.

In its final report, IPART specifically concluded that planning reform is a top three reform priority given the significance of the system to the economy and society as a whole. It was noted that ‘planning and DA should be a high priority area for Government attention in terms of introducing (and monitoring/reviewing) measures to improve the regulatory framework’. In this regard, planning reform should be a priority area for the Government in relation to overall business regulation reform.


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2.5 Development Assessment Forum

The Development Assessment Forum (DAF)1 was established in 1998 ‘to streamline the processes used for development approval and cut red tape – without sacrificing the quality of decision making’. Membership of the DAF includes the Property Council and NSW Government as well as the Commonwealth, other State and Territory jurisdictions, local government, other industry and professional associations (e.g. Planning Institute of Australia). The DAF Leading Practice Model for development assessment includes measures such as independent planning panels, electronic DA referral, the need for different methods of assessment including

exempt and complying development, and the need for more objective and clearer development requirements and controls.

2.6 Damning critiques – ICAC, Percy Allan, Productivity Commission

The planning system has also been subject to various critiques and calls for reform over recent years. • IPART Red Tape Review

As noted in the previous section, IPART’s final report Investigation into the burden of regulation in NSW and improving regulatory efficiency2 identified the planning system as a ‘high priority’ area for reform

and that the Government should investigate opportunities and efficiency gains further to the recent planning reform agenda.

• Percy Allen Report to the LGSA

The Final Report – Are Councils Sustainable?3 (May 2006) - of the Independent Inquiry into the Financial Sustainability of NSW Local Government commissioned by the LGSA and chaired by Professor

Percy Allen AM notes a number of ‘realities’ with the local development assessment process that are leading to increased costs and delays. These include a multiplicity of planning controls, complexity and risks of error. The report (at page 179) also suggests that the ‘local council planning, and the DA process in particular, has become discredited and is the source of the greatest number of complaints to the ICAC and the NSW Ombudsman’.

• ICAC – Corruption Risks

ICAC’s Position Paper (September 2007) Corruption risks in the development approval process4 - identified corruption risks and potential for real and perceived conflicts of interest of local councillors and politicians in dealing with local development applications. This included the conflicting roles and responsibilities of local councillors as elected representatives under the Local Government Act 1993 and as policy makers and members of a consent authority under the Environmental Planning and

Assessment Act 1979.

• Productivity Commission

The Productivity Commission’s Final Report Performance Benchmarking of Australian Business Regulation5 released on 19 February 2007 identified the development assessment and approval process as a ‘major area a regulatory concern’ and subsequently, a priority area for benchmarking the quality, quantity and compliance costs of regulation to identify unnecessary regulatory burdens.

• Prime Minister’s Regulation Taskforce

Reform of environmental and building regulation was also a key component of the Commonwealth Government Regulation Taskforce’s final report to the former Prime Minister and Treasurer Rethinking Regulation: Report of the Taskforce on Reducing Regulatory Burdens on Business6 released in January 2006.

1 Refer to www.daf.gov.au

2 Available at www.ipart.nsw.gov.au.

3 Avialable at www.lgsa-plus.net.au/www/html/1389-local-government-inquiry.asp 4 Available at www.icac.nsw.gov.au/files/pdf/Corruption_risks_in_NSW_development_approval_processes_-_for_web1.pdf 5 Available at: www.pc.gov.au/study/regulationbenchmarking/finalreport/regulationbenchmarking.pdf

6 Available at: www.regulationtaskforce.gov.au/finalreport/regulationtaskforce.pdf


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3. Planning improvement targets

The Property Council strongly supports the proposed improvement targets for key performance areas across

the planning system including reducing the number of DAs by 50% and overall DA processing times by a third. This approach of target setting and performance monitoring has been missing from the planning system – particularly given this approach is a standard feature of broader public sector reform and improved service delivery.

Recommendations:

1. Enshrine the proposed improvement targets for key performance areas in a clear NSW Government policy statement and incorporate them into the NSW State Plan – A New Direction for NSW when it is next reviewed and updated.

2. Planning system improvement targets should also be incorporated into the Department of Planning’s Corporate Plan and Results and Services Plan.


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4. Planning panels

4.1 – The problems with a lack of separation of powers The planning system has become subject to increased politicisation at the state and local council level. This lack of separation of powers in development assessment is demonstrated by the clear conflict at the

local council level between the roles and responsibilities of local councillors as elected representatives under the Local Government Act 1993 and their responsibility to make merits decisions on development applications based on law and policy under the Environmental Planning and Assessment Act 1979. The separation of powers doctrine is a fundamental element of our Westminster system of government. This doctrine ensures a clear division between the different branches and sources of power within our system of government in order to maintain balance and prevent an abuse of power and control – which at

the Federal and State tiers of government relates to the Executive (policy formulation), Legislature (policy making) and Judiciary (policy interpretation, application and enforcement). Not only is the separation of powers doctrine a key element of Australia’s democratic, government and legal systems, it is a key element of corporate governance at both the private and public sector level. As an example, in certain private corporations and institutions, there is a separation of powers between the

powers and responsibilities of ownership (shareholders), governance (Board of Directors) and management (Chief Executive Officer). In the NSW public sector, the doctrine has been applied to State Owned Corporations through the clear and separate roles and responsibilities of the responsible Minister(s), Board of Directors and management. This important aspect of corporate governance in relation to the NSW public sector was noted in the NSW Audit Office’s Performance Audit Report: Corporate Governance published in 1997. Unlike other tiers of government and the examples noted above, an elected council’s consideration of a

development application reflects no separation of powers. The separation of powers doctrine has simply been overlooked in the development assessment process. This has made the system extremely politicised, and led to increased conflicts of interest, corruption and lack of transparency. The South Australian Government has addressed this issue and ensured a separation of powers in the local development assessment process through the commencement in February 2007 of mandatory independent development assessment panels. The chair and majority of panel members are independent experts and

feedback – including from local government – suggests the panels are working effectively with a 20% improvement in DA assessment times and less matters going to court. South Australia also has a state level Development Assessment Commission. To highlight some implications of increased politicisation in the assessment process, the following three tables (Tables 1, 2 and 3) provide a description of Property Council member experiences where increased politicisation at the local level has created major problems and frustrations on significant development

projects which led to increased costs and reduced feasibilities. These experiences range from local councillors changing building envelope requirements during the assessment process, local council elections holding up the process, councillors refusing proposals despite

compliance with all development controls, councillors ignoring advice and recommendations from staff, independent panel and experts, and councillors in effect forcing a matter to be dealt with through the Land and Environment Court due to a deemed refusal.

Table 1: Mixed commercial / retail and residential tower

Location Sydney North

DA processing time 3 months

Determination Refusal by Council

Description of Process

• No certainty as Council was unable to agree on acceptable building envelope for site. • Numerous DAs lodged in accordance with changing Council requirements. • Changes in Councillors due to local elections and turnover in planning staff delayed the

assessment process.

• Recommended for approval by Council officers. • Council refused application.


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Table 2: Commercial and retail building

Location Western Sydney


Determination Refusal by Council, Approval by Land and Environment Court


• Complied with requirements in every respect.

• Recommended for approval by Council officers.

• Recommended for approval by Independent Panel.

• Recommended for approval by Council's expert on key planning issue.

• Refused by Council.

• Applicant appealed to LEC.

• All 6 Court appointed experts recommended approval

• Council officers met timeframes for assessment. Delays were entirely Councillor

driven.

Table 3: Mixed residential and commercial development – 100 units, 4000 square metres of

commercial

Location Sydney South


Determination Deemed refusal by Council, Approval by Land and Environment Court


• Recommended for approval by Council officers • Recommended for approval by the Independent Panel. • Recommended for approval by additional independent review of the proposal.

• Refused by Council.

• Approved by LEC. • Councillors influenced by lobbying of one resident. Grounds for refusal were not

grounded in Council’s planning controls.

4.2 Independent community survey: planning panels

Independent research conducted in late 2007 for the Property Council by UMR Research highlights that the community strongly supports the establishment of independent planning panels – like the proposed PAC and

JRPPs – as a key reform to the current planning system.

The Property Council commissioned UMR in September 2007 to test community attitudes to planning reform. The survey methodology includes two focus groups, one of Sydney inner west residents and one of inner south west residents. A targeted online survey of 693 home owners in Metropolitan Sydney was conducted

from 5-15 October 2007. 49% of respondents had lodged a DA. The margin of error is +/-3.5%.

The research highlighted that the community believes the current DA system is not working. DA processing is seen as the overall worst performance area of local councils. There is strong support for the introduction

of independent planning panels at the State and local levels to determine development applications.

The research findings in more detail are as follows:

1. Low support for existing system

• DA processing is seen as the worst area of overall council performance (see Illustration 4 below).

• The biggest failings were considered to be the time taken to process DAs (41% poor, 20% good) and the lack of fair and consistent decisions (38% poor, 19% good).

• The State Government’s handling of development applications was also perceived negatively.


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Illustration 4:

Rating of local council performance in key areas

2. Strong support for independent expert panels at the local level

• 58% either supported or strongly supported a proposal to have local independent planning panels to determine all DAs except simple projects determined by staff and only 8% opposed it.

• After hearing arguments for and against this proposal, support grew to 61% and opposition to 9%.

• The strongest arguments for change were:

1. Having independent experts is better than politicians making the decision 75% convincing

2. Panels would give reasons for their decisions 74%

3. Less local political meddling means faster decisions 73%

4. Transparency would be increased due to a strict probity code of conduct 72%

5. Panels would take the politics out of planning decisions 71%

• The strongest arguments against this proposal were:

1. Panel members who are consultants would have a conflict of interest 58% convincing

2. You can’t trust bureaucrats 44%

3. Panel members would be political appointments anyway 41%

4. You need a democratically elected councillor if you have a problem

with a DA 37%

5. It would just be another layer of bureaucracy 36%

3. Strong support for independent expert panels at the state level

• 51% either supported or strongly supported a proposal to introduce a State Planning Assessment

Commission to determine major projects and only 15% opposed it.

• After hearing arguments for and against, support grew to 54% and opposition dropped to 12%.

• The strongest arguments for change were:

1. Complex projects should be done by independent experts 74% convincing

2. A panel is better than just one person making the decision 71%

3. It would take the politics out of decision making 66%

4. Increases the transparency of decision making on big developments 66%

5. It would be more independent and transparent 65%


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• The strongest arguments against this proposal were:

1. Panel members would just be political appointments anyway 40% convincing

2. You can’t trust bureaucrats 40%

3. The State Government shouldn’t be making the decision anyway, all DAs should be assessed by the local council 35%

4.3 Establish the proposed Planning Assessment Commission (PAC)

The Property Council strongly supports the establishment of the proposed Planning Assessment Commission (PAC) and its proposed functions to assess State significant rezoning and major project proposals not considered to be critical infrastructure or projects. In effect, the PAC will assess the majority of current Part

3A projects and enable the Minister for Planning to assess critical infrastructure and projects. The PAC will improve transparency and independence and reduce the current and long-term project assessment burden on the Minister for Planning.

This is similar to current successful approaches at the state level in South Australia and Western Australia.

We believe the establishment of the PAC framework and constitution of the PAC under legislation provides a significant opportunity to address current issues and concerns with the Part 3A process. Some of the proposed benefits of Part 3A have not been delivered including increased efficiency. Further, Part 3A has

created concerns from the community regarding important issues such as transparency and community consultation. Some Property Council members are also paying significant assessment fees for major projects which would logically far exceed cost-recovery.

The PAC provides a unique opportunity to improve the current approach to decision making. The PAC should have standard and clear environmental assessment and community consultation requirements superior to current approaches. We also believe there needs to be a stronger link with local government including improved communication and working arrangements.

Recommendations:

3. Establish the proposed PAC to commence from 1 July 2008 with a scope to determine state significant rezoning proposals and major projects not considered to be critical infrastructure to improve transparency and independence and reduce the project assessment burden on the Minister for Planning. There should be no greater than a ninety day assessment for project applications and consideration of a deemed approval period.

4. Introduce efficient determination timeframes for proposals with combined state significant site listings and project applications.

5. In relation to proposed assessment timeframes, establish a corresponding standard deadline for requests for additional information and if the deadline passes, there should be a default confirmation that an application contains sufficient information to complete the assessment.

6. Constitute the PAC under legislation with appropriate functions and powers.

7. The Chair of the PAC should have skills and experience in planning, development and

sustainability matters and as per similar Government positions, appointed by the Minister or Governor for a set tenure.

8. PAC members should be available on a rotational basis and have skills and expertise in areas critical to the relevant project including planning, architecture, urban design, urban economics, development, traffic, infrastructure, sustainability, heritage and environmental impact.

9. Establish an adequately resourced PAC Secretariat to service the PAC and relevant activities.

10. Prepare and enforce guidelines which detail the PAC’s operational procedures including meetings, pre-DA meetings for applicants, hearings for applicants, timely referral of

applications to the PAC, opportunities for applicants to present, clear and certain requirements for requests for additional information, a cost-recovery fee schedule, providing reasons for decisions and community consultation requirements.

11. Empower the Department of Planning’s legal branch to draft SEPPs rather than the sole reliance on the Parliamentary Counsel’s Office.


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12. Develop a mandatory Code of Conduct for the PAC and its members to ensure transparency and accountability (similar to the SA Code of Conduct for Development Assessment Panels).

13. Create a separate PAC website to ensure information access and transparency on the PAC’s

activities.

14. Publish an annual report on the PAC and its activities.

15. Commit to a one-year independent review of the PAC and its activities.

4.4 Establish Joint Regional Planning Panels (JRPPs)

We strongly support the proposal to establish Joint Regional Planning Panels (JRPPs) to assess regionally significant projects. We also support the proposed membership composition of three independent members – including an independent Chairperson – and two local council appointees.

As has been noted, this is a much needed reform to depoliticise the local development assessment process, ensure a separation of powers and reduce the conflict between the role of councillors as elected representatives and policy makers under the LG Act and members of a decision making consent authority under the EP&A Act. This approach is also needed to provide a more efficient and overall effective assessment and determination framework for regionally significant projects.

We support the approach to model JRPPs on the Central Sydney Planning Committee (CSPC) which operates under the City of Sydney Act 1988. The CSPC functions well and has been effective in assessing major projects in Sydney city valued over $50 million. CSPC membership comprises a balance of State and Council representatives. This approach should be reflected in the JRPP operations.

We believe JRPPs should assess regionally significant private sector projects valued over $10 million. The proposed $50 million threshold is too high and will not address the Government’s objectives or current issues associated with the assessment of regionally significant projects – some of which have been noted in the previous section.

Similar to our recommendations in relation to the proposed PAC, the establishment of JRPPs should coincide with a major improvement to decision making processes including clear standard environmental assessment and community consultation requirements that exceed current approaches.

CSPC meeting information and relevant papers are available on the City of Sydney’s website and the public are able to make direct representations to the CSPC on matters being considered by the committee consistent with council guidelines – thus ensuring community access to relevant information and the decision making process.

The proposed JRPP approach is also similar of the successful operation of independent development assessment panels (DAPs) in South Australia (SA) created under the Development (Panels) Amendment Act 2006 which commenced in February 2007. It is worth noting that the South Australia legislation which enabled panels to be established passed through the parliament with bi-partisan support. The appropriate resolution of critical issues raised during the policy development process such as community participation

and accountability was achieved. There is also a clear mandatory Code of Conduct for panel members to improve accountability, transparency and decision making.

Feedback from SA – including from local government representatives - highlights that Panels are working

effectively and delivering improvements in relation to both the assessment process and outcomes.

One key outcome in this regard is that development assessment panels have enabled local councillors to spend more time and effort on strategic issues including land use planning and policy development for local policies that developments need to comply with. Further, feedback suggests that council planning and

assessment staff are conducting higher quality and more rigorous assessments of development proposals. There are also less conflicts of interest and corruption risks facing local councillors in relation to local development as a result of the new independent planning panels.

$10 million threshold

Our recommendation for a $10 million threshold for private sector projects rather than the proposed $50

million is also based on various factors including an analysis of Property Council member projects. Further, we understand that for the 2006/07 period, councils assessed only 24 projects across NSW valued over $50

million and only 44 over $20 million.


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A sample of these projects is provided in Table 5 on the following page which identifies 40 residential, commercial, industrial and retail projects with a total value of over $1 billion and an average value of $27 million. These are clearly regionally significant projects which should fall within the jurisdiction of the new JRPPs. If a $50 million threshold was introduced, such projects will continue to be assessed and subject to

inefficiencies and politicisation at the local council level.

Some projects listed in Table 5 took in excess of 200 net days to determine even when fully compliant with relevant local policies and codes. Some projects were subject to local councillors going against council staff and expert advice for approval when assessed against local policies and codes – without reasons being

provided for the decisions.

Table 5: Development Value Snapshot: Property Council member projects valued $10 million -$50 million

MEMBER Residential Commercial Industrial Bulky Goods/Retail

Member 1

$30m - 50 apartments,

Sydney East

$36m - private college, Sydney

South

$36m - warehouse, Sydney

West

$15m - 8,000m2 hardware,

Sydney S

$34m - 150 dwellings, Sydney West

$28m - 5,000m2 adaptive reuse, Sydney CBD

$30m - 40,000m2 distribution, Sydney West

$15m - 8,000m2 homeware, South Coast

$27m - 10,000m2 business centre, Sydney South

$36m - homeware, Sydney South

Member 2

$20m - shopping centre, Sydney West

Member 3 $47m - shopping centre, Sydney North

$26m - 13,000m2 warehouses, Sydney West

$47m - hardware, Mid North Coast

$37m - shopping centre, Central West NSW

$39m - 30,000m2 office/warehouse, Syd West

$25m - shopping centre,

Sydney West

$15m - 8,000m2 warehouse,

Sydney South

$40m - 15,000m2 technology centre, Syd North

Member 4 $22m - apartments, Sydney East

$32m - 10,000m2 business park, Sydney North

$49m - 35,000m2 warehouse units, Syd West

$29m - 23,000me, logistics, Sydney West

Member 5 $30m - apartments, Sydney North

$30m - 7,000m2 office, Syd North

$10m - apartments, Syd

North

$20m - 18 terrace homes, Syd North



Member 6 $32m - 34,500m2 business park, Sydney West

$40m - 23,000m2 business park, Syd North

$23m - 7,500m2 business park, Syd North

Member 7 $33.5m - 7,500m2 office/retail, Sydney West

Member 8

$19m - 63 dwelling units, North Shore

$11m - 7,700m2 office, Northern Beaches

$22m - 14,000m2 bulky goods, Nthn Beaches


$13m - 6,500m2 office, Northern Beaches


$11m - 34 dwelling units,

North Shore

TOTAL VALUE $243 million $379.5 million $319 million $135 million

MEAN VALUE $20.25 million (12 projects) $29 million (13 projects) $31.9 million (10 projects) $27 million (5 projects)

RANGE $10 million - $34 million $11 million - $47 million $15 million - $49 million $15 million - $47 million

OVERALL TOTAL $1.078 BILLION

OVERALL MEAN VALUE $27 MILLION (40 PROJECTS)

OVERALL RANGE $10 MILLION - $49 MILLION


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As noted in a previous section, the Property Council understands that in the 2006/07 period, only 24 DAs

across NSW were valued over $50 million, 44 DAs were valued over $20 million and 450 DAs were valued over $5 million. This itself highlights that the proposed $50 million threshold for regional significance is too high. We strongly believe the threshold should be lowered to $10 million which we estimate will apply to 350 projects per annum.

To better understand the impact of establishing JRPPs with a $10 million threshold for private sector projects, we have also analysed the latest available DA system data (2005/06) provided by the Department of Planning which formed the basis of the 2005-06 Local Government Performance Monitoring Report. While the sample of councils (116) provided in the dataset does not include all of the state’s 152 councils due to either some councils not providing information or issues with the data provided, the following three

illustrations provide an analysis based the sample councils. The following Table 6 highlights the number of NSW councils that determine projects of different construction value across six different categories. Interestingly (again, based on the sample), it highlights that only 65 (43%) of 152 councils (or 56% of councils with available data) have projects valued between $5 million - $20 million. Only 26 councils determine projects valued over $20 million. While there is not a data collection point at $10 million, it is clear that JRPPs will not affect the majority of NSW councils,

contrary to recent claims by the local government sector. Table 6: Number of councils that determine different valued development projects

No. of Councils with $ Value of DAs

$ Value No. of Councils

<$100K 116

$100K-$500K 109

$500K-$1M 91

$1M-$5M 84

$5M-$20M 65

>$20M 26

No. of Councils assessing different $ Value / DA

0

20

40

60

80

100

120

140

<$100K $100K-

$500K

$500K-

$1M

$1M-$5M $5M-

$20M

>$20M

No. of Councils

The following Table 7 provides mean gross determination times based on the six project value categories. It

is clear from the sample that the $5 million-$20 million category is the worst with an average of 163 days. This does include stop and clock and referral times which according to the Local Government Performance Monitoring Report 2005-06 can account for up to 80% (in the case of Upper Hunter) of gross determination times. This highlights the importance of the need to rationalise and improve state agency concurrences (see chapter six).


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Overall, $5 million -$20 million projects are in the slowest category of assessment and highlights that a $10

million threshold for regionally significant projects assessed by JRPPs is appropriate to target for the new assessment and determination approach. Table 7: Mean gross determination times based on project value

Average processing times based on estimate DA value

$ Value Gross Days

<$100K 47

$100K-$500K 64

$500K-$1M 106

$1M-$5M 148

$5M-$20M 163

>$20M 158

Grouped average 114

Mean gross determination time based on $ Value of DAs

0 50 100 150 200

<$100K

$100K-$500K

$500K-$1M

$1M-$5M

$5M-$20M

>$20M

Grouped average

Average processing times

based on $value Gross Days

The last table 8 highlights that for the $5 - $20 million category which has an average of 158 days, 28 councils are above the group average with Leichhardt, Burwood, Canterbury, Shellharbour, Woollahra the five slowest. Woollahra Council’s assessment of $5-$20 million projects is almost twice as slow as the group

average. Table 8: Slowest councils above the group average for projects valued between $5 million - $20 million

Council Group - DAs valued $5M-$20M - Mean Gross Determination Time > 158 Day Group Average

0

100

200

300

400

500

600

Cof

fs H

arbo

ur C

ity C

ounc

il

Wave

rley

Cou

ncil

Cam

pbellto

wn

City

Cou

ncil

Black

town

City

Cou

ncil

Upp

er H

unte

r Shire

Cou

ncil

Fairfi

eld

City

Cou

ncil

Parra

mat

ta C

ity C

ounc

il

Mar

rickv

ille C

ounc

il

Suthe

rland

Shire

Cou

ncil

Baulkha

m H

ills S

hire

Cou

ncil

Banks

town

City

Cou

ncil

Shoalha

ven

City

Cou

ncil

Que

anbe

yan

City

Cou

ncil

Lake

Mac

quar

ie C

ity C

ouncil

Botan

y Bay

City

Cou

ncil

Blue

Mou

ntains

City

Cou

ncil

Ashfie

ld M

unicipa

l Cou

ncil

Hun

ters

Hill

Mun

icip

al C

ouncil

Aubur

n Cou

ncil

Pittwat

er C

ounc

il

Port M

acqua

rie-H

astin

gs C

ounci

l

Mai

tland

City

Cou

ncil

Gos

ford

City

Cou

ncil

Wool

lahr

a Mun

icip

al C

ouncil

Shellh

arbou

r City

Coun

cil

Can

terb

ury

City

Cou

ncil

Burwoo

d Coun

cil

Leichh

ardt M

unicipal C

ounc

il

Gross Determination Time


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As has been noted, we strongly believe that the proposed $50 million threshold for regional significance

should be lowered to $10 million. In this regard, we believe the NSW government should establish JRPPs in the Hunter, Central Coast, Illawarra and four panels across Sydney by 1 July 2008 as these are critical areas for regionally significant development.

Claims about planning panels

We would also like to address concerns that have been raised with regard to the proposed JRPPs.

There have also been claims that JRPP’s will erode “local democracy”, result in a take-over of local planning controls and reduce community participation. Quite the contrary, JRPPs are based on the democratic principle of a separation of powers that currently does not exist in decision making at the local council level. The Property Council strongly believes that JRPPs should be subject to a superior decision making process

than current practice in local government including providing reasons for decisions and a mandatory Code of Conduct for Panels and panel members (similar to the experience in SA for Development Assessment Panels) which includes that individual panel members cannot meet with interested parties on a development proposal.

The proposed JRPP is modelled on the CSPC. There is little evidence to suggest that the CSPC erodes local democracy, results in less community participation or poor decision making in relation to major projects.

As noted above, the Property Council particularly supports JRPPs operating superior community consultation

to current standard approaches.

There are also the issue of claims that if the establishment of JRPPs seeks to reduce corruption risks, any risk will merely be transferred from local councillors to JRPP members. This is misleading as JRPPs will separate the powers of local councillors as policy makers and community representatives under the LG Act

and decision makers under the EP & A Act. We also recommend that JRPPs should be subject to a stricter Code of Conduct (similar to the SA Code of Conduct) than currently applies at the local council level. This would include a requirement to provide reasons for decisions; something that has been resisted by local government and a reform recommended in the ICAC’s Position Paper (September 2007) on corruption risks in the development approval process.

Claims of lack of accountability are also false as this assumes that local councils operate in a wholly accountable environment. We strongly believe JRPPs should be closely monitored and their activities subject to an annual report to increase transparency and accountability. JRPPs will also be accountable to the democratically elected NSW Government.

The Property Council has also observed commentary which seeks to erode the legitimacy and value of independent experts under the proposed JRPP framework by labelling such an approach as too ‘scientific’ or ‘rationalist’. The fact is, for larger and more complex projects there is a large degree of technical issues which require specialist expertise and knowledge such as traffic, architecture, and infrastructure. The community is better serviced with a determining authority that has a sound balance between an

understanding of technical issues – as well as community representation through the proposed membership of two council appointees on each JRPP.

Recommendations:

16. Establish Joint Regional Planning Panels (JRPP) under legislation to determine regionally significant private sector projects valued over $10 million and certain LEPs. The proposed $50 million threshold is too high as it would only cover around 26 projects per annum. There

should be no greater than a ninety day assessment for development applications and consideration of a deemed approval period.

17. Establish the first JRPPs in key growth areas of the Hunter, Central Coast, Illawarra and four panels across the Sydney metropolitan area by 1 July 2008.

18. Introduce efficient determination timeframes for proposals with combined rezoning and development applications.

19. In relation to proposed assessment timeframes, establish a corresponding standard deadline for requests for additional information and if the deadline passes, there should be a default

confirmation that an application contains sufficient information to complete the assessment.


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20. JRPP membership should comprise three independent state appointees appointed by the Minister for Planning and two local council appointees from the local government area subject of the relevant development proposal. The Minister should advertise and seek

expressions of interest from suitably qualified people to sit on JRPPs.

21. JRPP chairs and members should have appropriate skills and expertise in areas critical to the relevant project including planning, architecture, urban design, urban economics, development, traffic, infrastructure, sustainability, heritage and environmental impact.

22. Prepare and enforce standard guidelines which outline details about JRPP operational procedures including meetings, pre-DA meetings for applicants, hearings for applicants, timely referral of applications to the JRPP, opportunities for applicants to present, clear and certain requirements for requests for additional information, a cost-recovery fee schedule,

providing reasons for decisions and community consultation requirements.

23. Develop a mandatory Code of Conduct for JRPPs and their members to ensure transparency and accountability (similar to the SA Code of Conduct for Development Assessment Panels).

24. Applicants should lodge JRPP applications with the relevant council to maintain consistency with existing application processes. Council staff would then prepare their report on the application in the normal manner before applications are referred to the relevant JRPP for determination.

25. Enable JRPPs to delegate the determination of all or part of a development application to council officers.

26. Where a council is unable to resource the efficient and effective assessment of an application in the initial establishment regions of Sydney, Hunter, Illawarra and the Central Coast, consideration should be given to outsourcing the assessment and preparation of advice and recommendations to the JRPP.

27. Commit to an independent one-year review of the JRPP framework, established JRPPs and

their activities.


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5. Drive and accelerate increased sustainability

The NSW Government has shown a preparedness to consider incentive programs to encourage sustainable practices across a range of industries, most notably through the NSW Greenhouse Abate Scheme (NGAC scheme) and initiatives such as the Climate Change Fund. However it is missing a ready made option for encouraging leading sustainability practice in the property industry.

The Government should complement the existing BASIX scheme and develop a statewide voluntary sustainable incentives policy to drive and accelerate best practice in sustainability beyond minimum compliance.

The current BASIX SEPP which has been in place since 1 July 2004 enables local councils to go beyond the BASIX requirements if incentives are provided. To date, leadership from the NSW Government towards such an approach has been lacking and thus the uptake of this initiative at the state and local council has been extremely limited.

We believe a new sustainability incentives policy – which enables a developer to choose incentives such as

development bonuses or reduced utility headwork charges in exchange for meeting predetermined better than BASIX standards – would lead to significant innovation in the industry and enable even greater greenhouse and water reductions in new dwellings.

This BASIX approach could be piloted and phased in to the PAC and JRPP environmental assessment requirements for state and regionally significant residential developments in the first instance before being extended to local level assessment.

Recommendation:

28. Develop a voluntary statewide sustainable incentives policy (BASIX Plus) to complement the Building Sustainability Index (BASIX) to drive and accelerate best practice beyond minimum regulatory compliance.



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Despite acknowledging the need for change, there are no proposals in the Discussion Paper regarding the extremely important issue of state agency concurrences. While we understand the relevant Government

agencies have been developing options on this matter, industry and the community is lacking necessary details on the Government’s intentions. As identified in the latest Local Development Performance Monitoring Report 2005-06, referrals (combined with stop the clock) can account for up to 80% (in the case of Upper Hunter) of gross determination times.

State agency concurrences are a major source of uncertainty and delays in the assessment process. There needs to be a major rationalisation of state agency concurrences, as well as the development of clearer requirements and the improvement of referral and administrative processes. The current approach is highly

inadequate. Our members have had various experiences where a referral to a state agency for concurrence gets lost. This includes the problem of knowing the status and location of the application. Further, there is evidence that a culture exists of referring a DA to a state agency for comment ‘just in case’ it needs comment or approval as opposed to a clear statutory requirement.

There also needs to be an improved strategic focus from other state agencies that have an interest in planning and development issues. At this stage, most of the assessment occurs at the development stage of the process. The principle of bio-certification of local plans is supported in this regard – with recent biodiversity certification being granted to the North-West and South-West Growth Centres. Recommendations:

29. The number of state agency concurrences matters should be decreased.

30. State agency concurrences should be subject to a 20 day deemed approval period.

31. State agencies should have no more than a 10 day period from lodgement to request further information. If the deadline passes with no formal request, there should be a default confirmation that the application contains sufficient information to complete the assessment.

32. Increase clarity and certainty of requests for additional information (within a new 10 day timeframe) and the reasons for such requests through a standard guideline for agencies.

33. State agencies should immediately draft a standard set of consent conditions for public exhibition by 1 May 2008.

34. Clear and justifiable reasons should be provided for concurrence approvals and refusals.

35. Publicly report on state agency concurrence performance on an annual basis.


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7. Ensure 50% of all proposals are exempt or complying

development The Property Council strongly supports the objective of increasing the proportion of exempt and complying development across the state to 50% up from the 2005-06 average of 11%. The potential benefits of the exempt and complying categories when introduced in 1997 have not been

realised, resulting in a major increase in complexity and a majority of proposals still being subject to the traditional development assessment process. As an example, local councils have been able to become exempt from state policies such as SEPP 60 based on questionable reasons or criteria. Further, the preparation and assessment of LEPs does not include any requirements to ensure an extension of exempt and complying development. We do note that there been significant progress on this matter however in the Growth Centres under the Growth Centres Commission.

There are also no standard requirements or checking in plan making in relation to reducing red tape, developing clear, certain rules or streamlining the assessment process. Clearly, there should be such a requirement as part of the LEP preparation and assessment process to keep a close watch on additional requirements for studies and referrals. The Property Council commissioned JBA Urban Planning Consultants + TCW Consulting to prepare a report and make recommendations to improve exempt and complying development to meet the Government’s

proposed objectives. JBA’s report (Attachment 1) titled Unclogging the NSW Planning System: Solutions to remove red tape, reduce costs and reform exempt and complying development makes a number of recommendations (see below).

One critical recommendation relates to the introduction of merit assessment into the complying development process. This would mean that a proposal that meets all complying development requirements but triggers requirements such as environmental layers (e.g. heritage) would be able to remain in the complying

development stream, rather than having to be forced into lodging a DA with the relevant local council. This approach would have a 14 day assessment period and merit issues would be assessed by newly qualified professionals under the BPB scheme such as heritage consultants and certified planners. This would significantly free up the DA process, guarantee a rigorous assessment process and not compromise the quality of decisions.

JBA’s report also includes draft exempt and complying development schedules with standard requirements for developing including single dwellings, alterations and additions to single dwellings, shops, commercial and industrial buildings and swimming pools.

Recommendations:

As per the JBA Urban Planning Consultants + TCW Consulting report prepared for the Property Council (Attachment 1):

36. 50% of the state’s annual development proposals should be exempt or complying

development within three years from the commencement of a new standard state wide code.

37. Review and consolidate the existing ‘eligibility’ criteria for exempt and complying development under the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Standard Instrument into a single coordinated list for exempt and complying development.

38. Develop a new statewide exempt and complying development code and implemented via a new SEPP. The standard schedules should be based on the Development Assessment

Forum’s (DAF) “exempt” and “self assess” tracked and be applied consistently across NSW. The Complying Development Experts Panel (CDEP) should be established immediately to assist in developing new statewide codes.

39. Incorporate the statewide exempt and complying code into the Standard Instrument as adopted over time.

40. Introduce the new concept of “merit assessment” for certain complying development, where the level of assessment is relevant to the complexity of the development and its impact on

the environment. This would occur through the introduction of the new complying development code which would be augmented by performance-based measures. This Code would apply to land subject to environmental constraints and/or to facilitate tailoring to local circumstances. Applications using the merit assessment approach should be determined within 14 days of lodgement.


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41. Improve accountability of private certifiers providing the Building Professionals Board (BPB) with increased capacity and powers for investigation, enforcement and publicity of results. In addition and to facilitate certification of complying development under the new “merit

assessment regime”, accreditation under this Scheme would be extended to town planning,

urban design and heritage professionals.

42. Introduce standard mandatory notification requirements for complying development and extend existing notification periods.

43. Utilise e-planning as a mechanism to facilitate identification of “eligibility” to use the exempt or complying development regime, and to confirm provisions and requirements for complying development.

44. Strengthen annual data collection and performance monitoring to ensure information is

gathered, analysed and reported in relation to the achievement of the 50% performance measure and foundation principles.


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8. Rationalise land use plans and plan making

The Property Council strongly supports the proposals to improve the LEP and plan making process.

The current approach lacks a recognition that the scale, risk and complexity of LEPs varies from proposal to

proposal. There needs to be improved tailoring for the assessment of LEPs according to the scale, risk and complexity.

The current approach is also bound by too many procedural provisions under the EP&A Act commencing with the section 54 stage of the process. This highlights the need to improve the overall process once it formally commences but also the time and costs it takes to get to the section 54 council resolution stage – including for proposals that are consistent with regional strategies – which can take up to three years.

Another key factor to improve plan making is the need to improve the policy and regulatory practice in

relation to making planning instruments, particularly DCPs at the local council. DCPs are commonly drafted and placed on public exhibition with little or no regulatory or economic analysis on the impact of the policy on issues such as the cost of compliance, additional cost on development or the final product such as new housing or overall cost-benefit analysis. There is often no investigation – or evidence of investigation – of alternative ways to achieve the desired outcome. There is also no ‘red tape check’ requirement which often results in additional studies being required with no targeted outcome in mind.

Unlike at the state government level for SEPPs there is no equivalent vetting by the Premier’s and Cabinet

Department or in more recent times, the Office of Better Regulation to determine consistency with broader Government policies and whether good regulatory practice was followed.

Recommendations:

45. Implement the proposed reforms to tailor plan making and approval to the scale, risk and complexity of land use changes, reduce average processing time by 50% and improve state agency referrals and certification of plans.

46. Introduce the proposed new LEP gateway screening process however ensure it is more transparent that the current LEP Review Panel process. Proponents should be able to present to the Panel and be provided with reasons for decisions.

47. Increase certainty in the very subjective nature of the current tests under the proposed

justification report.

48. Require councils to be more efficient in progressing to the section 54 stage of the LEP process which can currently take up to three years to obtain a council resolution. Consider a maximum timeframe for this process such as 12 months.

49. Rationalise the requirements for environmental studies. Clear justification should be provided for requiring environmental studies rather than current experiences where studies are required with no clear rationale or understanding of desired outcome.

50. Remove the Parliamentary Counsel’s (PC) Office from the LEP process and empower the Department of Planning’s legal branch to prepare LEPs. Potential exceptions for the PC’s office could be comprehensive, local-government wide LEPs.

51. Introduce an appeal mechanism in the LEP process.

52. Continue to rationalise SEPPs and REPs as per previous planning reforms.

53. Implement and enforce requirements under previous planning reforms to standardise Development Control Plans (DCPs) and the application of one DCP per lot of land.

54. Improve regulatory practice for making LEPs and DCPs to ensure all opportunities to reduce red tape are addressed (e.g. unnecessary concurrences) and regulatory and economic analysis is undertaken for major policy proposals.


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9. A better method to deal with non-complying development

The majority (53%) of LEP amendments are in fact spot rezonings. This represents a failure of the planning system to deal with non-complying or innovative proposals. While we support in-principle the proposed LEP gateway process, new LEP guidelines and the tailoring of plan making according to the scale, risk and complexity, this will do nothing to address the long delays in the informal preliminary stages of a rezoning – before it reaches the formal stage. We have some members

that have taken three years to get to the section 54 stage of the process as noted above. There is no mechanism to force a council to prepare an LEP and councils are the sole arbiter in this process. There is also no appeal mechanism in relation to LEPs. We acknowledge that the LEP Standard Instrument and five yearly review process will keep LEPs more up to date, but plans will never be perfect and innovation must still be catered for. The NSW system attempts to cater for innovation through the plan making process. But this is an

inappropriate approach. A preferable approach would be one that assesses the merits of an innovative or non-complying proposal, not pretends that this should be treated as some suggestion to amend the planning instrument. South Australia has an effective working model for a ‘non-complying development’ stream. In that state proposals that are not technically compliant with the current zoning, yet are consistent with Regional Strategies, can be assessed on their planning merits under the development assessment process, and not

be subject to the plan making process. Where the consent authority (in South Australia, the local planning assessment panel) approves such a proposal, this must then receive concurrence by their state Development Assessment Commission.

We believe this should be adopted in NSW and would ensure a better utilisation of our constrained planning resources.

Recommendation:

55. Leverage South Australia’s example and introduce a new non-complying development assessment stream requiring full merit assessment by the Council or JRPP (as appropriate) and concurrence from the PAC recognising that spot rezoning is an inefficient way to assess such projects and encourage innovation.


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10. Alternative measures to improve private certification

The Property Council strongly agrees with the need to improve the certification system, the integrity of the accreditation scheme and the community’s understanding and perception of the important role that certifiers play in making our built environment safe and healthy. However, we strongly oppose the Government’s proposals to limit the ability and right of an applicant to enter into a commercial agreement with a preferred private certifier. Further, we strongly oppose the proposal for the Building Professionals Board (BPB) to allocate accredited

certifiers for ‘large or complex projects’, subject to the right of developers to reject the first two certifiers allocated. The proposals have made a significant and we believe unreasonable and unjustified (and potentially anti-competitive) leap to address issues of ‘perception’, a ‘lack of faith’ and ‘widely held council views’ in relation to private certifiers.

The key example referenced in the discussion paper to illustrate conflict of interest issues with certification is pre the establishment of the BPB in early 2007. We do not believe the BPB has been in operation for sufficient time to justify the proposals. We strongly believe that in the first instance the BPB’s increased auditing, enforcement and reporting functions should be implemented and monitored before launching into such extreme measures.

The proposals reject a fundamental basis of commercial agreements and relationships between a developer and accredited certifier that are based on superior service, expertise, competence and value for money. This is no different to agreements in relation to legal services, accounting services or architecture services.

Recommendations:

56. Abandon the proposals that seek to limit an applicant’s right and ability to enter into a commercial agreement with a preferred private certifier.

57. Abandon the proposal for the BPB to allocate accredited certifiers for large or complex projects subject to the right of developers to reject the first two certifiers allocated.

58. Strengthen the private certification system through increasing the BPB’s capacity and

powers to audit, investigate, undertake disciplinary action and enforce and publicly report on the accreditation scheme and certifiers.

59. Accelerate the extension of the accreditation scheme to local government certifiers.

60. Implement communication and public awareness campaign to highlight the extremely important role of certifiers in making the built environment safe and healthy in accordance with strict standards such as the Building Code of Australia and Australian / New Zealand Standards.


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11. Make DA timeframes meaningful through deemed approval

Statutory planning and DA timeframes under the EP&A Act have become meaningless.

There is no accountability for assessments that go longer than statutory timeframes and the process is increasingly being used to frustrate the process through ‘stop the clock’ requests for information being used inappropriately (which in many cases the information was already there but was not located or interpreted properly) and deemed refusals. There are also ongoing delays with referrals to state agencies and divisions within a local council such as engineering services.

While we support the proposed revised DA assessment timeframes to be better tailored to the different scale

of development proposals, these timeframes need to be meaningful and enforced. We oppose these timeframes being developed as ‘statutory assessment periods’ or in reality within many local councils, deemed refusal periods.

Recommendations:

61. Abandon the proposed ‘deemed refusal’ periods as they will not address current problems of

lack of accountability through indecision and deemed refusals associated with current

timeframes.

62. Implement the proposed ten, twenty, forty, sixty and ninety day assessment periods as deemed approval periods with a staged deadline (e.g. within 10 days) for requests for more information and further, when a request is not forthcoming there should be a default confirmation that sufficient information has been provided.


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12. Abandon limitations to Section 96 modifications

The Property Council strongly opposes the proposals to limit section 96 modifications.

Given the NSW Government’s objective to streamline the assessment process, we do not believe the full ramifications of this proposal have been considered.

It is not unreasonable for large developments to need to make significant numbers of modifications, particularly when construction timeframes are very long. Not all site circumstances and construction details

can be foreseen in the plans. The large degree of detail required upfront in our existing development application system exacerbates this need.

An unintended consequence of this proposal proceeding could be an increase of proposals having to be re-lodged as new DAs – representing minor amendments to the original - into the DA system that needs streamlining.

Section 96 modifications are often made due to changing market conditions, unavoidable changes that occur during the construction process or relatively minor amendments (e.g. colours). In many cases experienced

by Property Council members, section 96 modifications would not be needed if consent conditions were not drafted in such a restrictive manner.

Recommendations:

63. Abandon the proposal to limit the number of section 96 modifications that can be granted for a project as this would be extremely unreasonable.

64. If the desire to limit section 96 modifications proceeds, all consent modifications should be

treated as complying development and covered under the proposed new statewide complying development code.

65. If limitations to section 96 modifications proceed, all development consent conditions should be subject to the principle of “generally in accordance with…” to increase flexibility and reduce the restrictive nature of current consent conditions which are a key reason for the need for numerous section 96 applications.


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13. No new state infrastructure levies

The Property Council strongly opposes any introduction of new state infrastructure or development levies.

It should be noted that we strongly welcomed Premier Iemma’s announcement of 12 October 2007 to overhaul the approach to development contributions including a cut to state and local infrastructure levies on new housing in Sydney’s Growth Centres by up to 40 per cent (or $25,000 per lot). This included a reduction in the state government levy from $33,000 to $23,000 per lot and a reduction in local government levies from $45,000 to $30,000 per lot.

We also welcome the increased fiscal discipline the Government is injecting into local development levies particularly given the increasing stockpile of unspent section 94 funds across the metropolitan area and

other parts of the state. The Property Council also supports other aspects of the Premier’s announcement including:

• NSW Government commitment to an additional $2 billion to fund infrastructure (on top of existing $1.9 billion) in the Growth Centres,

• The new Urban Improvement Fund created to hold state and local levies to ensure better coordination and timely delivery of infrastructure in the Growth Centres.

• The Government’s $200 million seed funding for the Urban Improvement Fund.

• The revised Precinct Acceleration Process.

However we remain very concerned with the intention of translating the policy basis behind the Growth Centre state infrastructure levies to infill and other areas. This would see new development paying for transport and other infrastructure which it currently does not pay for.

We believe this would be a retrograde step particularly given housing starts are at near 50-year lows and still trending downwards (ABS) and parts of the state feature near the top of worldwide housing unaffordability lists (Demographia 2008). Further, COAG – through the COAG Housing Working Group which

met for the first time on 31 January 2008 – has recognised the impost of developer charges in relation to housing affordability and committed to investigating reducing developer charges through the new $500 million Housing Affordability Fund.

The industry must be consulted on this issue and what proposals are being considered in relation to infill areas.

The Property Council is keen to assist the state and local governments in finding solutions in this area. We are currently investigating alternative financing methods including the potential to apply US style Tax

Increment Financing in the Sydney metropolitan context. The results from this investigation should be available in late March 2008.

Recommendations:

66. Do not impose new state infrastructure levies in metropolitan infill or regional areas.

67. Consult with industry and provide further details prior to releasing further policies and information in relation to infrastructure levies.

68. Improve transparency of local council section 94 levies and require levies to be spent within

a set timeframe.

69. Consider a detailed review of the current section 94 structure and funding methodology including the investigation of a mandatory standard flat percentage levy to reduce variations and improve consistency and incentives or trade-offs for projects that demonstrate excellence in environmental protection and sustainability.

70. Consider using US style Tax Increment Financing arrangements as a better way to finance local infrastructure, particularly in metropolitan infill areas.


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14. Other reforms

14.1 Accelerate the e-Planning Roadmap

We strongly support the e-Planning proposals and encourage the Government to move forward on this matter.

We are certainly encouraged by the Department of Planning’s recent progress with the recently gazetted city centre plans of Parramatta, Liverpool and Gosford having online maps available on the Parliamentary Counsel’s website.

The planning and DA system has not comprehensively embraced Information and Communications Technology (ICT) as a means to improve access to information and system efficiency and effectiveness. The improved utilisation of ICT – or electronic (‘e) planning – is also a key element of a successful planning reform agenda. The NSW Government has already taken up e-Government in various areas as a key element of public sector reform and there is no reason why this should not be extended to the land-use planning and DA system.

It is important that the Government works collaboratively with local councils and targets councils that

require the most assistance and/or councils in key growth areas. As an example, the Government could provide seed funding to develop new systems for local councils in the key centres subject to the government’s increased focus for job creation and jobs closer to home. This includes the Sydney CBD, North Sydney, Parramatta, Gosford, Penrith, Liverpool, Newcastle and Wollongong. This would also leverage the Government’s proposal under the NSW Government Statement on Innovation which identifies these centres for new comprehensive wireless broadband networks.

We believe that State Government leadership and investment in e-planning will lead to significant overall

benefits. There is an opportunity in this regard to leverage off the investment certain local councils have

already made on e-planning (e.g. Pittwater Council) through initiatives funded under the Commonwealth’s Regulatory Reduction Improvement Fund. E-planning could also leverage and capitalise on the NSW Spatial Information Strategy developed by the Government’s Board of Surveying and Spatial Information (BOSSI).

Recommendation:

71. Immediately implement the proposed e-Planning reforms.

14.2 Paper subdivisions

We strongly support the proposal to reform paper subdivisions to enable the development of current constrained areas.

Recommendation:

72. Implement the proposed paper subdivision reforms including new legislative powers to facilitate the development of areas currently largely incapable of development.

14.3 Development assessment

We believe a range of improvements are needed on other aspects of the development assessment process to improve consistency and certainty for applicants.

This includes the need to improve the certainty for applicants so that when matters required to be considered in the assessment process are addressed, there is no opportunity for third party appeals based on what are essentially merit issues. This includes issues that are addressed – but are facing potential challenges due to the extent to which the issue was considered. In effect, this amounts to a significant regulatory risk for all development applicants particularly given the large volume of matters that need to be

considered in any one application. In this regard, we note that a review of conditions of development consents is a miscellaneous reform.

In addition, other matters which need to be address include reinforcing the hierarchy of planning instruments to avoid inconsistency of local level controls with state requirements (e.g. SEPP 65). There also needs to be increased standardisation on issues such as deep soil planting, car parking requirements based on distance to public transport and staged approval processes (e.g. to resolve differences for high-rise between City of Sydney and Parramatta).

Recommendations:

73. Reinforce the hierarchy of planning instruments to prevent local councils adding layers and going beyond state requirements where appropriate policies and frameworks are already in place. This includes local requirements for minimum apartment sizes inconsistent with SEPP 65 and local proposals to go beyond BASIX.


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74. Increase certainty for applicants so that where matters required to be considered are addressed in a development or project application, there is no opportunity for third party appeals based on what are essentially merit issues.

75. Do not extend third party appeal rights to any new development categories or development

assessment streams including Part 4 applications.

76. Increase standardisation and consistency in the development assessment process including for various matters including temporary sales offices, temporary advertising, staged approvals for high-rise buildings, on-site construction hours, deep soil planting and car parking requirements based on distance to public transport.

14.4 Strata title and management reform

We support the intent to improve strata management and the general nature of the proposed reforms.

However before proceeding with proposed recommendations S4 and S5 to limit the number of proxies held by one person and prevent a developer / owner from exercising voting rights there needs to be a greater understanding on the legitimate reasons that developers and building owners hold proxies through vendor finance and loan arrangements.

Recommendation:

77. Do not implement proposed changes to strata management arrangements unless a developer

or original building owner has an opportunity for fair representation. This includes circumstances where a developer or owner still has a legitimate interest in the property through vendor finance and loan arrangements.

The discussion paper is silent on the need to reform strata laws to enable a strata scheme to be dissolved at the end of a building’s physical or economic life. With Sydney’s oldest strata titled buildings now 80 or 90 years old, this is not an issue which can continue to be ignored.

The Property Council strongly believes that the Government should commit to reforming strata title laws. Strata title laws need to be amended to facilitate the renewal of buildings and enable urban redevelopment. This is a particular issue in our major CBDs where strata titling prevents the recycling of building stock to enable modern office, retail and residential stock to be supplied to the market.

Strata title is a popular form of property ownership and provides a mechanism through which a substantial share of our cities’ residential and commercial buildings are owned. A quarter of the NSW population own, live or work in a strata titled building. However, currently there is no workable process for ‘unlocking’ a

strata scheme at the end of a building’s economic or physical life. Since strata title laws where introduced in 1961, over 70,000 strata schemes have been registered in NSW, almost half of which involve buildings over 20 years old. Many of these buildings were only designed for a 30-60 year life and will shortly require substantial renovation or complete redevelopment. Under existing NSW strata title laws the unanimous agreement of owners is required to dissolve a strata scheme and agree to a redevelopment – a virtually impossible task given the size of many strata title schemes.

An inability to redevelop strata buildings will ultimately hamper the growth and evolution of key parts of our cities, and many of the Government’s urban renewal targets outlined in the Metro Strategy, to house 60-70% of Sydney’s growing population within existing areas, will not be achieved. Key business centres like the Sydney CBD will be affected. Sydney CBD is home to over 230 strata buildings, this includes 80 commercial buildings and 100 residential buildings in the city’s core. A failure to be able to renew these buildings would jeopardise growth in Australia’s economic capital.

The Property Council is calling for a reform package to be adopted including:

• introducing a new Renewal Plan to provide an effective and transparent process to guide owners through the process of dissolving a strata scheme,

• providing for strata schemes to be dissolved if not more than 25% of owners vote against the proposal, instead of the existing unanimous agreement requirement, and

• ensuring fair terms are be provided to all owners who do not support termination.


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We believe the Government needs to act now to unlock the strata title straight jacket. Significantly, the

Government made a commitment to reform strata title laws in its Metro Strategy, however, we are not aware of any action to date. A summary of our Renewal Plan is provided below, and attached is a copy of a discussion paper we prepared, Renewing Our Strata Titled City outlining the renewal plan process. Our renewal plan proposal has previously been the subject of two NSW Government discussion papers.

Current renewal threshold Under the Strata Titles Management Act 1996 a strata scheme can be terminated by a court order or a special resolution where no unit owner votes against termination (which if carried must then be signed by all owners, including those who did not vote, registered lessees and covenant charges). In practice, these provisions are unworkable, in effect requiring unanimous owner agreement.

We understand that unit owners may be hesitant to terminate schemes because they are concerned they will not receive fair compensation when disposing of their share or they may wish to remain in their building’s current location. These concerns could be alleviated through the introduction of an effective termination process which allows unit owners the choice of participating in the renewal of their building or selling their share to a third party to undertake the redevelopment process. The Property Council believes a new threshold of no more than 25% against termination should be

introduced in recognition of the increasing number of owners in strata schemes. Strata title renewal plan It is imperative that unit owners have access to and confidence in an effective and transparent process to terminate strata schemes. On this basis, the Property Council developed a ‘renewal plan’ process to enable unit holders to participate in the termination of their scheme while ensuring they receive fair and equitable

compensation. The Property Council’s renewal plan would enable owners to either participate in the redevelopment of their scheme or sell to a third party to redevelop (for example a developer). The renewal plan proposed by the Property Council is illustrated in table 9 below. Table 9:

Property Council proposed strata renewal plan process

Notice Renewal Plan

Certification Approval

Termination (owners retain no

interest)

Termination (owners retain an

interest)

The Renewal Plan Process

Pre-Termination


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Termination of a scheme could be initiated by a current participant in the strata scheme or a third party.

Interestingly, in developing the renewal plan concept, the Property Council noticed that many strata owners would prefer to sell to an independent, third party who would conduct the redevelopment rather than undertake it themselves. Termination of a strata title scheme would begin with a Notice being provided to all scheme participants and any party connected with it. Following receipt of this notice, a detailed Renewal Plan would be prepared providing details of the preferred redevelopment outcome, including development applications required,

architectural plans, and the like. Timeframes for termination would also be outlined. A minimum period of three months consultation would apply and the Renewal Plan would need to be certified by a “Strata Schemes Commissioner” to confirm it contained the content required for owners to make a decision on the merits of the proposal. Once the proposal for termination was certified, unit owners would have an opportunity to accept or reject the proposed Renewal Plan. Voting would be limited to owners of financial standing, as is currently the case.

If no more than 25% of owners disagreed the scheme would be terminated. Parties would then have an opportunity to participate in redevelopment of the scheme or a third party may do so. The owners’ corporation would remain in force until the scheme is terminated. The scheme would only be terminated once all the Renewal Plan conditions were met (for example, once development consent was received for the new development).

Transitional requirements The Property Council believes any new termination regime should apply to both new and existing buildings. While easier to apply to new buildings, aging strata buildings pose the most immediate and greatest challenge to achieving urban renewal. It is imperative that these older schemes are included in a renewal scheme. It is also important that both residential and commercial buildings are included. To enable existing buildings owners to take advantage of strata title renewal reforms, effective transitional

arrangements will be required to ensure existing owners interests’ are protected. The Property Council believes a period of twelve months for new strata developments and two years for existing strata buildings is an appropriate transition period.

Interstate and international comparisons Terminating a strata title scheme requires the following conditions in other Australian jurisdictions:

Victoria - has no process for administrative termination following agreement. Court-aided termination is the only method of terminating. Queensland – as with NSW a resolution without dissent is required. Queensland laws also require, to the extent necessary, an agreement about termination between all owners and each lessee. The scheme may also be terminated by a court order if deemed just and equitable.

Western Australia, South Australia and Northern Territory - termination by unanimous resolution or court order. Tasmania - provides for termination by unanimous agreement and the written consent of all registered mortgagees. However, the consent of the registered mortgagees may be dispensed with if the mortgagee has unreasonably withheld consent and termination can be effected without prejudicing the mortgagee.

Terminating a strata title scheme requires the following conditions in international jurisdictions: New York and Washington – termination threshold is 80% owner agreement. Singapore - termination threshold is 80% if the strata arrangement is more than 10 years old, and 90% if less than 10 years old.

Hong Kong - termination threshold is 90% of owners, however, the authorities have discretion to stipulate a reduced threshold of 80% (presumably exercised having regard to the age, condition and circumstances of a particular case). Japan - termination threshold is 80%. Those who do not wish to participate in the reconstruction must sell. There are provisions to determine value in the event of disagreement.


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New Zealand - if termination is supported by 80% or more of those entitled to vote, any person included in

the majority may apply to the court to have the resolution declared sufficient to authorise termination.

Recommendation:

78. Reform strata title laws to enable a strata scheme to be dissolved in a more efficient manner at the end of a building’s life instead of the existing unanimous agreement requirement.

14.5 Local government reform

The reality is that weaknesses within the local government sector will inhibit the effectiveness of these planning reforms. This is but one reason to look hard at this important tier of government and design a reform program to strengthen it.

The Property Council strongly supports a strong, effective and sustainable local government that manages

competing demands in an efficient and effective manner, is focussed on strategic issues and provides superior service delivery. We also support strong civic leadership and recognise that local government is an important tier of government and representative of local communities.

The Property Council has participated in the Local Government and Shires Association’s (LGSA) ‘Strengthening Local Government Taskforce’ initiative including the Taskforce’s business roundtable in November 2006. The business roundtable made suggestions to improve governance structures in local councils including extending mayoral terms to four year terms and abolishing rate pegging7.

However local government is weak and in structural decline and continues to face a number of significant challenges. Many of these were confirmed in the Final Report – Are Councils Sustainable? (May 2006) - of the Independent Inquiry into the Financial Sustainability of NSW Local Government commissioned by the LGSA and chaired by Percy Allen AM8 (or ‘the Percy Allen report’). The report uncovered a ‘number of

pressing problems that need urgent attention’ – the most significant being a $6 billion+ backlog of infrastructure renewals.

Professor Allen’s 2007 updated study into the financial sustainability of the State’s largest 96 councils found

that only one in four councils is financially sustainable based on projected financial and infrastructure conditions out to 2015-16.

Other challenges include managing competing demands and ensuring a strategic approach to issues

identified under the NSW Government’s growth strategies such as the City of Cities – A Plan for Sydney’s Future9 and other regional strategies. Indeed, we believe that implementing the proposed planning reform agenda will require increased efficiencies in the local government sector.

The Property Council believes a local government reform agenda should include:

• Structural reform to create larger councils in metropolitan regions, reducing the number of Sydney councils from 44 to around 12.

• Ensure workable local executive government – limit the number of councillors to a maximum of nine per council.

• Reform financing – abolish rate capping for these larger councils subject to adherence to a Fiscal Responsibility Framework, allow responsible borrowing to fund long life infrastructure; force councils to expend unspent development contributions.

• Invest in leadership – mandate that mayors be directly elected for four year terms, serve full time and have salaries equivalent to that of a NSW cabinet minister.

• Invest in professionalism – provide compulsory training for new and existing councillors on their

roles and responsibilities.

• Require all councils to produce a ten year infrastructure strategy and review it every two years, in a similar format to the State Infrastructure Strategy.

7 Refer to LGSA Media Release (22/11/06) ‘Business Roundtable Calls for Changes to Way Councils Are Governed’ – available at www.strengtheningLG.lgsa.org.au. 8 Final Report available at LGSA website: http://www.lgsa-plus.net.au/www/html/1389-local-government-inquiry.asp

9 Refer to Department of Planning/Metropolitan Strategy website: http://www.metrostrategy.nsw.gov.au/


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Recommendation:

79. Commit to local government reform program to create a stronger and more efficient local

government sector commencing with a public review using the 2000 Sproats Review as a model which would include public submissions, benchmark interstate and international examples, conduct hearings and deliver a report within 12 months.


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15. Implementation of the reforms

The Property Council is keen to ensure any planning reforms are properly implemented.

This includes the Department of Planning’s capacity to deliver and further, the capacity of other state agencies and local council to deliver any reform agenda.

We think a crucial component of implementation should be the development and execution of a comprehensive communications plan. This could include updated information on the Department of Planning website such as a new plain English guide to the process which includes simplistic flow diagrams or snapshots of how the overall planning system operates.

The planning system also needs to build on the current progress on performance monitoring and reporting. A DA monitoring and reporting system should be a legislative requirement and be integrated with other council reporting requirements where possible. We have also made previous recommendations in this submission about ensuring appropriate monitoring and public reporting on the PAC’s activities and JRPP’s activities.

Part of the monitoring system should utilise the performance benchmarking framework recommended in the

Productivity Commission’s report Performance Benchmarking of Australian Business Regulation which includes performance and standards benchmarking and performance indicators to better monitor and identify unnecessary regulatory burdens. A key benefit of a DA monitoring and reporting system is that it will enable performance to be monitored and continually improved over time. Predictions can also be made about future performance which will be critical given the future and project growth challenges.

Recommendations:

80. Adhere to the proposed implementation timeframes including the proposed Draft Exposure Bill to be tabled into Parliament in March and commencement of the reforms from 1 July 2008.

81. Establish a Ministerial Reference Group comprising relevant stakeholders and experts to oversee the implementation of reforms.

82. Remove unnecessary procedural elements from the Act (e.g. LEP making) but underwrite the

reforms in legislation and not in Ministerial and Departmental guidelines.

83. Prepare and execute a comprehensive communications plan for the reforms to improve public awareness. This should include an education program (e.g. roadshows) and a new plain English guide to the EP&A Act and LG Act to improve understanding of the planning system including roles and responsibilities.

84. Ensure planning reform implementation – as well as monitoring and evaluation - is properly funded and resourced commencing with the Department of Planning’s 2007-08 Budget bids

and preparation. Out-sourcing certain reform actions to the private sector should be seriously considered to assist with timely delivery.

85. Instruct the Independent Pricing and Regulatory Tribunal (IPART) to conduct a review of current and proposed planning system fees. The review should consider a statewide fee structure, appropriate fee for service based on the public value of planning regulation, fee caps (particularly for state significant projects) and the planning system and linkages with performance and efficiency.

86. Continue to improve planning system performance monitoring through annual data collection and public reporting including the performance of the Department of Planning, state agencies involved with plan making and concurrences, and local councils.


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16. Next steps

The Property Council recommends that the NSW government:

1. Establishes a Ministerial Reference Group to provide advice and oversee the implementation of the reforms.

2. Tables a Draft Exposure Bill underwriting the reforms into Parliament when it resumes on 26 February. 3. Maintains its commitment to a first phase 1 July 2008 implementation date. 4. Consults with industry in relation to any proposals to introduce state infrastructure levies in infill and

regional areas.

7. C


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17. Contact

Please contact the following about any aspect of this submission:

Ken Morrison NSW Executive Director Property Council of Australia

Level 1, 11 Barrack Street

Property Council of Australia House SYDNEY NSW 2000

t. 02 9033 1906 f. 02 9033 1978 m. 0412 233 715 e. [email protected]


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Attachment 1

JBA Urban Planning Consultants + TCW Consulting

Unclogging the NSW Planning System: Solutions to remove red tape, reduce costs and

reform exempt and complying development

JBA Urban Planning Consultants Pty Ltd ABN 84 060 735 104 ACN 060 735 104 w jbaplanning.com.au

Level 7, 77 Berry Street North Sydney NSW 2060 t 02 9956 6962 � 29 Beach Street Wollongong NSW 2500 t 02 4225 7680

Unclogging the NSW Planning System:

Solutions to remove red tape, reduce costs and reform

exempt and complying development

Prepared for

Property Council of Australia

December 2007 � 07413

JBA Urban Planning Consultants Pty Ltd operates under

a Quality Management System. This report has been

prepared and reviewed in accordance with that system.

If the report is not signed below, it is a preliminary draft.

This report has been prepared by Kathryn Werner

Signature

Date 20/12/2007

This report has been reviewed by Lesley Bull

Signature

Date 20/12/2007

Reproduction of this document or any part thereof is not permitted without prior written permission of

JBA Urban Planning Consultants Pty Ltd.

Unclogging the NSW Planning System �� Solutions for reform December 2007

Contents

JBA Urban Planning Consultants Pty Ltd � 07413 i

1.0 EXECUTIVE SUMMARY 1

2.0 SUMMARY OF RECOMMENDATIONS 2

3.0 INTRODUCTION 3

3.1 Origins of exempt and complying development ..................................................... 3

3.2 The current situation......................................................................................... 4

3.3 Recommendations............................................................................................ 6

4.0 KEY DIRECTIONS 7

4.1 Principles for exempt and complying development................................................. 7

4.2 Summary of key recommendations for a new system ............................................ 8

4.3 Benefits of proposed approach ..........................................................................10

5.0 KEY FEATURES OF THE NEW SYSTEM 12

5.1 Simplify the eligibility criteria for exempt and complying development & reduce blanket

exemptions ....................................................................................................12

5.2 Adopt a streamlined, track-based system of assessment .......................................14

5.3 Certification ...................................................................................................16

5.4 Improve the quality of complying development applications ...................................18

5.5 “Merit” assessment for complying development...................................................18

5.6 Improve the notification process........................................................................19

5.7 Accelerate the assessment process....................................................................19

5.8 Complements strategic planning reforms.............................................................20

6.0 WHAT IS EXEMPT AND COMPLYING DEVELOPMENT 22

6.1 What is exempt development? ..........................................................................22

6.2 What is complying development?.......................................................................22

APPENDIX A SCHEDULE 1: EXEMPT DEVELOPMENT 25

Section 1: Standard requirements for exempt development ............................................27

Section 2: Additional provisions for exempt development on land subject to environmental

constraints.....................................................................................................34

APPENDIX B SCHEDULE 2: COMPLYING DEVELOPMENT 35

Section 1: Standard requirements for complying development.........................................36

Section 2: Additional provisions for complying development on land subject to environmental

constraints.....................................................................................................55

FIGURES

1 Figure 1 – Improved local development assessment process ...........................................................21

TABLES

2 Table 1 - Complying development certificates as % of total determinations – top 10 councils...............5


JBA Urban Planning Consultants Pty Ltd � 07413 1

1.0 Executive Summary

The NSW Planning System has been the subject of reform for the past 20 years,

with the most recent improvements focussing on the strategic planning

framework and major development assessment.

However, much needed improvements to the local development process have not

been forthcoming. This is despite applicants, councils, practitioners and even the

State Government all agreeing that the system is ripe for reform: navigating the

local development assessment process is confusing, frustrating and time

consuming, and inconsistent decision-making is commonplace.

In 2006-07, 120,000 development applications and complying development

certificates were granted in NSW, with average processing times running at close

to 70 days. Further, 45% of all DAs processed by local councils related to

alterations and additions to dwelling houses.

The NSW Government has recently announced the number of DAs processed in

NSW should be cut by half, and this will be achieved through a wholesale review

of the “exempt” and “complying” development provisions. Exempt and

complying development is development with little or no impact on the local

environment and does not require a development application to be lodged with a

council. Although these provisions were introduced into the NSW planning

system in 1997, currently only 11% of all development applications fall into this

category.

Thus, overarching reform, through simple, yet fundamental, improvements is

needed if the proposed target is to be met.

Reforms to the exempt and complying development provisions can be achieved

through:

� A holistic revision of development controls applying to minor development,

ensuring they are simple to understand and consistently applied across NSW;

� More transparent application of local development controls, in terms of how

and why decisions and made, and consequent increased opportunity for

community involvement in the policy-making process; and

� Improving the accountability of decision makers, particularly private certifiers

who are charged with determining if development is “exempt” or

“complying”.

These reforms will deliver significant benefits to all parties involved in the local

development assessment process in NSW: mum and dad applicants will have

greater certainty in the development potential of their – and their neighbours’ –

homes, councils will have greater opportunity to focus on delivering good

strategic plans, and the community will benefit from significant time and financial

savings as planning disputes are avoided.



2.0 Summary of Recommendations

� The NSW Government establish a planning system performance measure

such that 50% of the State’s annual development proposals should be

exempt or complying development within three years, from the

commencement of the new standard code.

� Review and consolidate the existing ‘eligibility’ criteria for exempt and

complying development under the Environmental Planning & Assessment Act

and the Standard Instrument into a single co-ordinated list for exempt and

complying development.

� Develop a new state-wide Exempt and Complying Development Code, and

implement via a new State Environmental Planning Policy. The standard

schedules should be based on the Development Assessment Forum’s

“exempt” and “self assess” tracks, and be applied consistently across NSW.

� Incorporate the state-wide Exempt and Complying Development Code the

Standard Instrument, as adopted over time.

� Introduce the new concept of “merit assessment” of certain complying

development, where the level of assessment is relevant to the complexity of

the development and its impact on the environment. This would occur

through the introduction of the new complying development code, which

would be augmented by performance-based measures. This Code would

apply to land subject to environmental constraints and/or to facilitate tailoring

to local circumstances. Applications using the merit assessment approach

will be determined within 14 days of lodgement.

� Improve accountability of certifiers through improved administration by the

Building Professionals Board of the BPB Accreditation scheme. In addition,

and to facilitate certification of complying development under the new “merit

assessment regime”, accreditation under this Scheme would be extended to

town planning, urban design and heritage professionals.

� Utilise e-planning as a mechanism to facilitate identification of “eligibility” to

use the exempt or complying development regime, and to confirm provisions

and requirements for complying development.

� Strengthen the NSW Government’s annual data collection and performance

monitoring to ensure information is gathered, analysed and reported in

relation to the achievement of the 50% performance measure and foundation

principles.



3.0 Introduction

Since the exempt and complying development provisions were introduced into the

NSW planning system, the impact on the development assessment process has

been limited. Currently only 12% of all applications are for complying

development1.

The Minister for Planning has indicated that the number of exempt and complying

developments should account for up to half of all applications in the State. The

Property Council of Australia (PCA) strongly supports this position. Alleviating

the pressures on our local planning approvals system by streamlining the

Development Application regime will enable local councils to employ valuable

planning resources where they are best utilised – dealing with the more complex

medium and large scale development proposals that warrant a higher level of

environmental impact assessment, and focussing on the resolution of strategic

planning issues and the development of robust local planning policies to provide

certainty and clarity in the planning process.

3.1 Origins of exempt and complying development

The concept of “exempt” and “complying” development was introduced into the

NSW planning system in 1997 through a landmark amendment to Environmental

Planning and Assessment Act 1979. It was introduced by then-Minister for

Planning Craig Knowles MP on the principle of good regulation and administration,

to enable councils to focus on more complex issues including large DAs and

policy making.

“Exempt” development has only a minimal impact on the local environment (for

example small fences, barbecues and pergolas) and is classified as such in local,

regional or State planning instruments. Councils may also list exempt

development in a development control plan (DCP). Development consent is not

required for exempt development as long as the requirements in the planning

instrument are satisfied.

“Complying” development is generally common or routine, and is classed as such

by local, regional or State planning instrument. Its impact on the environment

must be predictable and minor. To carry out the development, a complying

development certificate must be issued by an accredited certifier or the local

council. If the application is successful, the council or certifier will issue a

certificate (usually subject to conditions).

Despite the good intentions of planning administrators and policy makers, regular

reviews of the NSW planning system have found that the system is still lacking in

1 Local Development Performance Monitoring: 2005-06. Department of Planning, July

2007. A total of 117,923 local development determinations (development

applications plus complying development certificates) were reported in 2005–06.



transparency, accountability and consistency. For example, the Local

Development Taskforce, established by then-Minister for Infrastructure and

Planning (Planning Administration) Diane Beamer MP and headed by Neil Bird in

2003, found that the “speed and quality of approvals of houses is the ‘big

issue’”, and addressing that issue would fix “approximately 70% of the

problem”2.

The taskforce also recommended that complying and local development is the

most appropriate way to deliver consistent standards of housing, while at the

same time reducing red tape and achieving a better balance of community

involvement in the decision making process.

In addition, the Local Development Taskforce considered opportunities for

facilitating the issue of complying development certificates for environmentally

sensitive land, or in instances where a single standard has been breached.

3.2 The current situation

Increasing the use of exempt and complying development to achieve the 50%

benchmark will not occur without making some fundamental changes to the

system and how it is applied by local councils – currently only four (out of 152)

councils in NSW have exempt and complying development provisions that meet

this target. Wholesale reform to the regime is not, however, necessary – rather,

with a rethinking and refocus on how the building blocks of the existing system

are used, the necessary changes can be readily accommodated. The PCA does

however believe that the necessary changes can be achieved without

compromising the quality of decision making, and the delivery of good planning

and design outcomes to our communities.

Currently, around 45% of Development Applications processed by local councils

in NSW relate to alterations and additions to dwelling houses. Expanding

complying development to incorporate the construction of single detached

dwellings and alterations and additions to dwelling houses is therefore considered

to be the single most beneficial step that can be made towards achieving the

50% benchmark.

This is a reasonably straightforward proposition for most greenfield / new release

area locations, and although accommodating the same principles in established

infill areas is a significantly greater challenge, this challenge must be met if the

system is to deliver the outcomes required.

There are also inroads to be made by expanding the categories of non residential

development, including ancillary development, change of use applications and

internal and external alterations, additions and fitouts to industrial and commercial

premises.

2 Improving Local Development Assessment in NSW – Report by the Regulation

Review. Local Development Taskforce to the Minister Assisting the Minister for

Infrastructure and Planning (Planning Administration) October 2003.



If developed with the right specialist input from councils and relevant agencies

such as the Department of Environment and Climate Change and the NSW

Heritage Office, there are considered to be key opportunities for the exempt and

complying regime to be tailored to ensure that the right level of planning

assessment occurs for minor development that is proposed on land subject to

environmental constraints. Currently, blanket exemptions from the system are

often applied by councils to land subject to bushfire, flood risk, contamination,

acid sulphate soils, heritage conservation, erosion and the like. It should be

recognised that in some circumstances these blanket exemptions are warranted.

However, it need not always be the case where it is possible to develop criteria

and provisions that ensure development responds appropriately to its potential

impact.

The PCA also supports recognition in the exempt and complying development

regime of the need for Councils to be able to include more detailed provisions to

accommodate particular local circumstances where warranted, providing such

provisions do not preclude any otherwise permitted exempt or complying

development. Again, this is particularly relevant in established infill areas where

the complexity of the urban context demands a consideration and assessment of

additional matters.

A number of councils in NSW have developed exempt and complying

development regimes that already relieve the Development Application system of

more than 25% of proposals within their LGAs. Examples include:

� Wollongong;

� Campbelltown; and

� Tamworth Regional.

Port Macquarie Hastings and a number of smaller rural and regional councils

already exceed the target of 50% of applications determined as complying

development (although other than Port Macquarie Hastings, the number of

applications dealt with by these councils is only small). The top 10 councils

issuing complying development certificates are shown in Table 1 below.

Table 1 - Complying development certificates as % of total determinations – top 10 councils

Council CDCs as % of

total

determinations

(DA+CDC)

Complying

development

certificates

issued (CDCs)

DAs

determined

Total

determinations

(DAs + CDCs)

Narrabri 57% 134 103 237

Inverell 56% 290 231 521

Port

Macquarie-

Hastings

52% 905 836 1741

Walgett 51% 50 49 99

Deniliquin 46% 94 110 204

Narrandera 44% 76 97 173



Gilgandra 44% 27 35 62

Tenterfield 42% 54 75 129

Parkes 42% 102 142 244

Cobar 41% 101 143 244

Source: Local development performance monitoring 2005–06, July 2007. Department of

Planning

The key features of the exempt and complying development regimes that have

been adopted by the better performing councils, and which should be applied

Statewide, are:

� Incorporation of construction of dwellings and alterations and additions to

dwellings into the regime;

� Separation of matters relating to building and construction from matters

requiring a higher level of complexity through merit assessment;

� Minimised use of environmental overlays to preclude exempt and complying

development; and

� Adoption of the all or the majority of exempt and complying provisions

currently found in SEPP 60.

3.3 Recommendations

To maintain Statewide consistency, and accountability and transparency in the

process, the PCA supports the development of standard exempt and complying

development schedules at the State level by the Department of Planning, to be

implemented via mandatory inclusion in the Standard Instrument Order.

The PCA supports the retention of the majority of the administrative processes

currently in place for the issue of complying development certificates. However,

it is considered that the period of notification of the issue of a complying

development certificate to neighbours should be extended to better inform them

of new development occurring in their locality.

To facilitate administration of the exempt and complying development regime, the

PCA also supports, in the medium term, a review and expansion in the system of

accreditation of persons charged with the issue of complying development

certificates, or providing third-party advice on the issue of certificates. The well-

established accreditation scheme, Code of Conduct and complaints handling and

disciplinary process administered by the Building Professionals Board can be used

as a basis for this.



4.0 Key Directions

4.1 Principles for exempt and complying

development

The NSW Government should establish a set of foundation principles for exempt

and complying development. The following principles are proposed:

� Unclog the system: Remove 50% of applications in NSW from the

Development Application regime.

� Tailor environmental assessment requirements appropriately: Create a

streamlined, track-based system of assessment that recognises that different

levels of environmental assessment are warranted for different types, scales

and locations of development.

� Simplify the statutory framework: Consolidate the criteria that determine

what is exempt and complying development into a single coordinated list that

is clear and readily interpreted by ‘mums and dads’.

� Minimise exclusions from the regime: Draw as wide a scope of development

categories into the system as is reasonably possible.

� Be consistent across the State: Establish standard provisions for compulsory

application by all local councils. Do not allow councils to delete standard

provisions and measure councils’ performance against the target.

� Recognise the complexity of different environments: Include special

provisions (in addition to the standard provisions) to manage the impact of

development on land subject to environmental constraints.

� Recognise differences in the character and planning / design aspirations for

local environments: Allow local councils to add special provisions to the

standard criteria to reflect local circumstances where appropriate.

� Ensure exempt and complying development standards are clear and readily

assessable.

� Ensure accountability of the certification process for complying development

certificates.

� Engage local communities: Improve notification requirements for complying

development certificates.



4.2 Summary of key recommendations for a

new system

We make the following recommendations to improve the local development

system:

4.2.1 System performance measure

� The NSW Government should establish a planning system performance

measure that 50% of the State’s annual development proposals should be

exempt or complying development within three years.

4.2.2 Statutory framework

� Review and consolidate the existing ‘eligibility’ criteria for exempt and

complying development under the Environmental Planning & Assessment Act

and the Standard Instrument into a single co-ordinated list, known as the

Exempt and Complying Development Code. Include blanket exclusions only

where considered absolutely critical due to the highly sensitive characteristics

of the land (eg for critical habitat, in wilderness areas etc). Do not allow

councils to add to this list via the tailoring of LEPs or DCPs.

� Include standard criteria and provisions for exempt and complying

development as compulsory schedules in the Standard Instrument, and

implement via a new State Environmental Planning Policy. The Code must be

a minimum requirement that councils can add to, but not delete from.

4.2.3 Standard schedule for exempt development

� The Exempt Development Code should be incorporated into the Standard

Instrument and be based on the Development Assessment Forum’s “exempt”

and “self assess” tracks to ensure the level of assessment is relevant to the

complexity of development and its impact on the environment.

� Establish mandatory categories of development and ‘standard’ criteria /

provisions to be included in the Exempt Development Code for consistent

application on all land across the State.

� Rather than applying blanket exclusions, establish additional, special

provisions relating to exempt development on land that is subject to identified

environmental constraints, including, for example, land subject to salinity,

contamination, flood risk, slope etc.

� Allow councils to add to or expand the mandatory categories of exempt

development if desired, as long these amendments do not detract from the

mandatory provisions or prevent the achievement of 50% exempt or


� All provisions for exempt development should be factual and quantitative (ie a

black and white test).



4.2.4 Standard schedule for complying development

� Base the complying development schedules to be incorporated into the

Standard Instrument on the Development Assessment Forum’s “self assess”,

“code assess” and “merit assessment” tracks to ensure the level of

assessment is relevant to the complexity of development and its impact on

the environment.

� Establish mandatory categories of development and ‘standard’ criteria /

provisions to be included in the complying development schedule for

consistent application on all land across the State. The ‘standard’ criteria /

provisions should be factual and quantitative (ie a black and white test).

� Allow councils to add to or expand the mandatory categories of development

if desired.

� Rather than apply blanket exclusions, establish additional, special provisions

relating to complying development on land that is subject to identified

environmental constraints, including, for example, land subject to salinity,

contamination, flood risk, slope etc.

� Allow councils to augment the Complying Development Code, as long as any

amendments do not detract from the mandatory provisions. Any additional

criteria / provisions should be structured around specified land use zones.

� Additional criteria / provisions relating to land subject to environmental

constraints and / or to accommodate tailoring to local circumstances may be

of a more complex nature than the ‘standard provisions’. They should still be

essentially objective and quantitative, however a level of qualitative, or

“merit” assessment may also be required to ensure appropriate outcomes,

including consideration by a person with planning or design expertise.

� Applications using the “merit assessment” approach would be forwarded to

the Council for consideration, as well as the private certifier. Applications

would be determined within 14 days of lodgement.

� Criteria added to the Complying Development Code should not prevent

Councils from achieving the 50% threshold of applications as exempt or


4.2.5 Administration

� Require DoP to assess the ability of the Complying Development Code to

deliver 50% of applications within the LGA as part of the LEP preparation

process.

� Retain the existing dispute resolution mechanisms applying to exempt and


� Extend the notification period for complying development from two to seven

days.

� Maintain the 7 day determination time for complying development certificates

where only ‘standard’ provisions apply.



� Introduce the “merit assessment” of applications for land subject to

environmental constraints, or to accommodate tailoring to local

circumstances apply. These applications will be determined by town

planning, urban design and heritage professionals accredited under the

extended Building Professionals Board accreditation scheme and be

determined within 14 days of lodgement.

� To ensure accountability of decision making by ensuring “merit” applications

(applications relating to land subject to environmental constraints have been

tailored to local circumstances) are to be determined by town planning, urban

design and heritage professionals accredited under the extended Building

Professionals Board accreditation scheme.

� Improve the quality of complying development and simplify the lodgement

process by introducing a Statewide complying development application form

that provides consistency and clarity in identifying requirements.

� Improve ease of access and use of the complying development system by

introducing e-planning as a mechanism to facilitate identification of ‘eligibility’

to use the exempt or complying development regime, and to confirm

provisions and requirements for complying development.

4.2.6 Data collection and performance monitoring

� The NSW Government should strengthen its current annual data collection

and performance monitoring to ensure information is gathered and analysed in

relation to the achievement of the 50% performance measure and foundation

principles.

4.3 Benefits of proposed approach

4.3.1 Reduces red tape

� Reduced red tape for applicants

� Ease of access to and usability of the system (e-planning)

� Improved clarity

4.3.2 Consistency

� Consistent standards for minor development across NSW

� Comparable development systems to other Australian States and Territories

4.3.3 Flexibility

� More options for assessment

� Standards can be tailored to manage impacts on land subject to

environmental constraints

� Councils can complement standards to adjust for local conditions



4.3.4 Reduces burden for councils

� Council planners can focus on large, more complex development applications

and on strategic planning for their communities

� Potentially introduces a new role for “certified planners” to extend the pool of

professionals dealing with applications in NSW

4.3.5 Maintains local environmental standards

� Complying development in environmentally sensitive areas will be subject to

additional development standards, and complying development certificates

may only be issued by professionals accredited under the extended BPB

accreditation scheme

� Inappropriate development will be refused

� Development applications are required for major works

4.3.6 Complements strategic planning reforms

� Clear regulations for new dwellings facilitates meeting targets for new

dwellings in growth areas

� Reduces delays in approvals for new housing and minor commercial and

industrial development

4.3.7 Improves NSW’s economic position

� Generates construction activity by simplifying the alterations and additions to

dwelling houses and minor commercial and industrial development

� Maintains NSW’s economic competitiveness through clear and consistent

regulation

� Enables councils to redirect resources to more strategic issues, saving millions

of dollars each year

4.3.8 Improved public accountability

� Increased transparency, accountability and improved decision making by

councils

� “Merit” applications (for development in environmentally sensitive areas) may

only be determined by professionals accredited under the extended Building

Professionals Board accreditation scheme

� Strengthened accountability of public and private certifiers, through boosting

the role of the Building Professionals Board, accrediting more professionals

and encouraging the use of council certifiers.



5.0 Key Features of the New System

5.1 Simplify the eligibility criteria for exempt

and complying development & reduce

blanket exemptions

Controls and restrictions on the application of exempt and complying

development are currently found in a number of places within the NSW legislative

framework.

Division 1 of Part 4 of the Environmental Planning and Assessment Act 1979

establishes the existing “threefold classification” of development in NSW:

� Development that does not need consent;

� Development that needs consent; and

� Development that is prohibited.

Under the EP&A Act, certain types of development are excluded outright from

eligibility to be considered under the exempt and/or complying development

regime. This includes designated development, development where a

concurrence is required from another public authority / agency (excluded from

complying development), development on land that comprises, or on which there

is a heritage item (excluded from complying development), and development

within ‘environmentally sensitive areas’ (excluded from complying development).

The Standard Instrument includes some additional requirements for eligibility

within the regime. The Standard Instrument defines ‘environmentally sensitive

areas’, including a sub-definition of ‘sensitive coastal locations’. This definition is

fairly expansive.

State Environmental Planning Policy No 60 – Exempt and Complying

Development includes schedules for development that meets the specific criteria

to be classed as either exempt or complying. These criteria duplicate some of

those in the EP&A Act, while others are additional, such as the incorporation of

land in regional NSW that is 40 metres from a watercourse, land on a slope

greater than 18 degrees, and land that is identified on an acid sulphate soils

planning map.

SEPP 60 currently has limited application within NSW, however remains an

important benchmark for the development and consideration of alternative exempt

and complying development regimes for local councils. Of particular importance

for consideration in any new regime is the limitation that is placed on the potential

scope of exempt and complying development by the incorporation of

‘environmental overlays’ that extend the blanket exemptions already specified

under the EP&A Act from the regime.

The provisions of the EP&A Act, the Standard Instrument and SEPP 60 are also

overlapped by provisions in council DCPs, and in other State policies such as

SEPP 4, SEPP 64 etc.



The Property Council of Australia supports:

1. The review and consolidation of all ‘eligibility’ criteria relating to exempt and

complying development into a single list, to improve clarity and ensure

consistency across the State;

2. Requiring mandatory application of the consolidated eligibility criteria by all

local councils (for consistency it should also be used in the preparation of

SEPPs and REPs); and

3. A reduction in the scope of blanket exclusions from the system to the

absolute minimum that is reasonable to ensure protection of our most

sensitive environments.

A reduction in the scope of blanket exclusions from exempt and complying

development can be achieved without compromising environmental and planning

outcomes.

It is considered by PCA to be essential that the exempt and complying

development regime recognise that the potential impacts of development on land

that is subject to environmental constraints requires special consideration and

must be managed carefully.

PCA supports the retention of the majority of land currently identified under the

EP&A Act and / or the Standard Instrument as blanket exclusions. It is

considered that these existing provisions (mostly) correctly identify that land upon

which exempt and complying development is inappropriate because it cannot,

under any reasonable or ‘standardised’ circumstances, be managed effectively

through the application of standard criteria and provisions.

At the same time, it is recommended that other land subject to environmental

constraints be clearly identified, but rather than being excluded from the regime,

be incorporated along with additional, more specific criteria and provisions for

exempt and complying development on this land to ensure appropriate

management of the environmental impacts that may potentially arise due to its

environmental sensitivity. This will remove as many of the lands on which

exempt and complying development is expressly prohibited as possible.

Development on lands that have an increased level of environmental sensitivity

can then remain eligible for consideration as exempt or complying development.

Key types of environmental constraints that would fall into this aspect of the

regime are considered to be:

� Salinity;

� Acid sulphate soils;

� Bushfire;

� Flood;

� Slope;

� Subsidence, slip or erosion;

� Heritage conservation.

Currently, the Standard Instrument definitions of ‘environmentally sensitive areas’

and ‘sensitive coastal locations’ exclude land within 100 metres of State

conservation areas, SEPP 14 wetlands, SEPP 26 rainforests, and the mean high



water mark of the sea, a bay or an estuary from the regime. It is considered that

this exclusion is unnecessary, as environmental impacts of development can be

appropriately managed.

To be robust, provisions developed for certain locations or types of development

where environmental constraints are relevant would need to be developed by the

Department of Planning in consultation with the Department of Environment and

Climate Change (for nominated environmentally sensitive locations), other

relevant public agencies and industry and professional bodies.

5.2 Adopt a streamlined, track-based system of

assessment

The PCA strongly supports a planning system that tailors the level of

environmental assessment undertaken to the complexity of a project and its

impacts on the built and natural environments.

The Development Assessment Forum (DAF) model is a track-based method of

assessment that responds to this objective. The issues that require consideration

in making a decision about a project under this model are clearly stated.

Unnecessary application or information requirements are avoided.

Six tracks are proposed under the DAF model:

� Exempt;

� Prohibited;

� Self assess;

� Code assess;

� Merit assess; and

� Impact assessment.

Each track is consistent with ten leading practices3:

Effective policy

development

Elected representatives should be responsible for the

development of planning policies. This should be achieved

through effective consultation with the community,

professional officers and relevant experts.

Objective rules

and tests

Development assessment requirements and criteria should be

written as objective rules and tests that are clearly linked to

stated policy intentions. Where such rules and tests are not

possible, specific policy objectives and decision guidelines

should be provided.

Built-in

improvement

mechanisms

Each jurisdiction should systematically and actively review its

policies and objective rules and tests to ensure that they remain

relevant, effective, efficiently administered, and consistent

across the jurisdiction.

3 A Leading Practice Model for Development Assessment in Australia.

Development Assessment Forum, March 2005.



Track-based

assessment

Development applications should be streamed into an

assessment ‘track’ that corresponds with the level of

assessment required to make an appropriately informed

decision. The criteria and content for each track is standard.

Adoption of any track is optional in any jurisdiction, but it

should remain consistent with the model if used.

A single point of

assessment

Only one body should assess an application, using consistent

policy and objective rules and tests.

Referrals should be limited only to those agencies with a

statutory role relevant to the application. Referral should be for

advice only. A referral authority should only be able to give

direction where this avoids the need for a separate approval

process.

Referral agencies should specify their requirements in advance

and comply with clear response times.

Notification Where assessment involves evaluating a proposal against

competing policy objectives, opportunities for third-party

involvement may be provided.

Private sector

involvement

Private sector experts should have a role in development

assessment, particularly in:

Undertaking pre-lodgement certification of applications to

improve the quality of applications.

Providing expert advice to applicants and decision makers.

Certifying compliance where the objective rules and tests are

clear and essentially technical.

Making decisions under delegation.

Professional

determination for

most applications

Most development applications should be assessed and

determined by professional staff or private sector experts. For

those that are not, either:

Option A – Local government may delegate DA determination

power while retaining the ability to call-in any application for

determination by council.

Option B – An expert panel determines the application.

Ministers may have call-in powers for applications of state or

territory significance provided criteria are documented and

known in advance.

Applicant

appeals

An applicant should be able to seek a review of a discretionary

decision.

A review of a decision should only be against the same policies

and objective rules and tests as the first assessment.

Third-party

appeals

Opportunities for third-party appeals should not be provided

where applications are wholly assessed against objective rules

and tests.

Opportunities for third-party appeals may be provided in limited

other cases.

Where provided a review of a decision should only be against

the same policies and objective rules and tests as the first

assessment.

The PCA supports the use of the DAF model as a basis for determination of the

appropriate scope of exempt and complying development. Such a system would

reduce the number of Development Applications that would otherwise need to be

determined by councils, thus enabling council planners to focus on the more

complex or controversial applications – those requiring a more intricate, higher

order level of assessment - and the development of strategic planning policy.

Exempt and complying development generally falls into the “exempt”, “self

assess” and “code assess” tracks.



The “exempt” and “self assess” tracks would form the basis of the exempt

development schedule, and the standard provisions contained in the complying

development schedule.

Development assessed in the “code assess” track would be considered against

objective criteria and performance standards, and used in the same way as the

“deemed to satisfy” provisions of the Building Code of Australia. Such

applications would be of a more complex nature than for the self assess track,

but still be essentially quantitative.

Complying development could also be extended into the “merit assessment”

track, thus leading to better outcomes than strict compliance with the numerical

controls found in the “code assess” track.

The “code assess” and “merit assessment” tracks would contain:

� Any special criteria applying to land subject to identified environmental

constraints; and

� Provide for local councils to supplement standard complying development

provisions with locally-relevant matters to ensure new development is

consistent with local character and conditions.

However, Councils’ additional exempt and complying development provisions:

� Must not preclude any otherwise permitted exempt or complying

development;

� Should be capable of meeting the 50% complying development target;

� Must not be inconsistent with, or more onerous than, the provisions of the

standard exempt and complying schedules; and

� Be subject to review by the Department of Planning as part of the LEP

preparation process.

5.3 Certification

The PCA supports the increased use of accredited certifiers to issue complying

development certificates where an assessment is required against provisions

requiring a level of qualitative or merit assessment, including any provisions

applying to the site and development on land subject to identified environmental

constraints.

Persons issuing complying development certificates, or providing third-party

advice to an accredited certifier, should be required to be accredited by the

Building Professionals Board, in the same way private certifiers are accredited.

The Board is an independent statutory body, reporting to the Minister for

Planning, which is responsible for:

� Accrediting all accredited certifiers;

� Investigating complaints against them;

� Conducting audits of accredited certifiers and councils; and

� Improving professional practice through education.



To ensure all professionals are accountable for the complying development

certificates they issue, all certifiers must be accredited by the Department of

Planning through the Building Professionals Board (for private certifiers) or the

Council (for public certifiers).

Much like the system that applies to practicing architects, the Board has

established the BPB Accreditation Scheme to accredit professionals operating as

certifiers in the building and construction industry, as well as procedures to

address any complaints against certifiers or the need to implement disciplinary

action. A Code of Conduct for certifiers is also in place, to provide assistance to

persons who are considering making a complaint against a certifier.

Certifiers must clearly justify their decisions for issuing a complying development

certificate, including ensuring the development complies with the relevant building

and development standards. Importantly, merit applications for complying

development in environmentally sensitive areas, or applications that do not meet

all of the prescribed standards, may only be determined by town planning, urban


Professionals Board accreditation scheme.

The use of professionals from the private sector to carry out limited “public

sector” activities is part of the broader reform to the public sector, and is a

principle well-accepted by the Federal government, as well as other States and

Territories. It provides greater choice to the community through competition,

while also providing opportunities for professionals to work in both the public and

private sector. However, the Building Professionals Board retains control of the

training and accreditation for all private certifiers operating in NSW.

Currently, certifiers can be accredited in a range of fields including building

surveying, fire safety compliance, geotechnical engineering and subdivision and

building works. It is proposed to extend these areas of accreditation to town

planning, urban design and heritage professionals, as part of a collaborative

exercise with relevant industry associations, to enable a greater pool of

professionals to issue, or provide advice on the issue, or complying development

certificates.

The current BPB Accreditation Scheme includes core criteria as well as those that

are considered “relevant to the category of accreditation”. Continuing

Professional Development (CPD) courses are conducted to boost certifiers’

knowledge and experience in their chosen areas of expertise.

Town planning and urban design professionals that are accredited as “Certified

planners” would be required to meet professional standards developed by the

Building Professionals Board. As certified planners will be required to interpret

architectural plans and complying development standards, they must also be

accredited by professional associations such as the Planning Institute of Australia,

who require their members attend CPD courses on a regular basis.

Whilst supportive of the above system, PCA recognises that the expansion of the

exempt and complying development regime via introduction of a degree of ‘merit’

or qualitative assessment into the criteria and provisions that control exempt and

complying development is a significant shift in current practices. This shift will



require adjustment not only on the part of the development industry, but more so

for local councils and the local community.

It is therefore recommended that complying development for land subject to

environmental constraints and / or tailored to local circumstances (using the merit

assessment approach) only be determined by town planning, urban design and

heritage professionals accredited under the extended Building Professionals Board

accreditation scheme.

Where only ‘standard’ criteria and provisions are relevant, certification should be

able to be carried out by the local council or a private certifier, as is currently the

case.

5.4 Improve the quality of complying

development applications

The form and content of applications for complying development is not currently

standard.

It is recommended that a standard application form for complying development be

developed for implementation across NSW.

The standard form should be of a nature that it enables an applicant to:

1. Identify the eligibility of their proposal to be considered as complying

development; and

2. Identify the criteria / provisions that will be applied to their proposal;

and requires an applicant to:

3. Answer or provide the relevant information that is required to address the

criteria / provisions applicable to their development, and

4. Comment on the level of compliance.

The certifier would then address whether in fact the development does comply

with the Exempt and Complying Development Code.

5.5 “Merit” assessment for complying

development

As recommended by the Bird review of local development in 2003, “merit”

assessment of certain complying development is proposed.

Complying development in certain environmentally sensitive areas, such as land

that is subject to acid sulphate soils, salinity or heritage conservation, may be

subject to a higher level of assessment for development than land that is not

constrained. The additional standards would be developed by the Department of

Planning in conjunction with other relevant agencies. Complying development

certificates for these proposals must be determined by town planning, urban


Professionals Board accreditation scheme, who will assess if the proposal must

be appropriate for its sensitive location.



In addition, conditions may be imposed upon certain complying development

where a breach of a single development standard occurs. In these instances,

complying development certificates may only be carried out by town planning,

urban design and heritage professionals accredited under the extended Building

Professionals Board accreditation scheme, and the breach of the standard must

be deemed appropriate for the location.

Merit assessment of complying development enables development standards to

be sufficiently flexible to apply to the broadest range of locations, while at the

same time ensuring inappropriate complying development is not progressed.

5.6 Improve the notification process

The nature of exempt and complying development does not warrant its

notification. Opportunities for third-party involvement, including neighbour

notification, should be adopted only where an assessment of a proposal involves

evaluating it against competing policy objectives.

As complying development activities are designed to be wholly consistent with

specified criteria and provisions, notification for complying development should

continue to be conducted only after the complying development certificate has

been issued for the development.

As is currently the case, the notification should extend to adjoining properties

only, and advise that the works were of the type that did not require a

development application.

However, it is recommended that the content of notification letters should clearly

define the nature of the development, including the development criteria that are

required to be met. The letter should include contact details for the relevant

council officer, to assist the recipient of the letter in obtaining further information

if desired.

It is also recommended that the period between issue of the notification letter and

the commencement of works be extended from the existing 2 days to 7 days.

This is to allow neighbours a greater opportunity to become aware of the

imminent commencement of works, and also time to understand the nature of the

development that is about to occur.

5.7 Accelerate the assessment process

Currently, Councils reporting the longest overall time for development applications

tend to have the longest determination times for low-value or relatively minor

development applications.

Transferring many of these minor DAs over to complying development will

alleviate pressure on council planners, while at the same time increasing the level

of complying development certificates moving through the system. It will also

deliver an important reduction in the mean net time State-wide for determining

development applications, which is currently 42 days.



It is recommended that determination times for standard complying development

certificates continue to be 7 days. However, given the greater level of

assessment required, it is recommended that certificates involving the

consideration of special criteria / provisions (ie those using the merit assessment

approach) be increased to 14 days.

5.8 Complements strategic planning reforms

The Metropolitan Strategy for Sydney, and complementary strategies for regional

cities and urban expansion areas, set ambitious targets for new housing and

employment growth over the next 25 years.

Achievement of those growth targets is predicated on having a simple and

unambiguous town planning regime that is clearly understood by all parties

involved in the development process.

New residential development in Sydney’s North West and South West Growth

Centres is targeted as complying development. New employment lands in outer

Sydney could benefit significantly from a streamlined approvals process where

there are no impacts on neighbours or the local environment.

Facilitating this development through exempt and complying development will

deliver significant cost and time savings for councils, the community and

applicants, while at the same creating attractive and liveable environments that

are consistent with the Government’s vision for NSW.



Figure 1 – Improved local development assessment process

Development that does not

need consent

Development that does need

consent

Complying

development

Exempt development Development

application

Determine level of assessment required

Complying development:

deemed-to-satisfy

provisions

strict compliance with

numerical standards

Complying development:

merit assessment

enables flexible application

of standards & is suitable

for env sensitive locations

7-day decision 14-day decision

Notify neighbours

(7 days)

Refer queries to Council

planner

Options if complying

development application

is refused:

� Re-submit complying

devt application

� Lodge DA



6.0 What is Exempt and Complying Development

6.1 What is exempt development?

Development listed in Schedule 1 is development of minimal environmental

impact that is exempt development provided that:

(a) It satisfies the applicable requirements listed in Schedule 1;

(b) It is not designated development;

(c) It is not carried out on land that is an environmentally sensitive area for

exempt or complying development;

(d) Any building involved meets the relevant deemed to satisfy provisions of the

Building Code of Australia;

(e) Any existing building involved that is classified under the Building Code of

Australia as Class 1b or Class 2 – 9 has a current fire safety certificate or fire

safety statement, or the building is a building for which no fire safety

measures are currently implemented, required or proposed;

(f) It is located more than 1 metre from any easement, public water main or

public sewer main;

(g) It does not create interference with the neighbourhood because it is noisy,

causes vibrations, creates smells, fumes, smoke, vapour, steam, soot, ash,

dust, waste water, grit or oil; and

(h) Where it involves the removal or damage to vegetation, it is in accordance

with any tree preservation order of the relevant local council that is in force.

6.2 What is complying development?

Development listed in Schedule 2 is complying development provided that:

a) It satisfies the applicable requirements listed in Schedule 2;

b) It is not designated development;

c) It is not carried out on land that is an environmentally sensitive area for

exempt or complying development;

d) It is not development for which development consent cannot be granted

except with the concurrence of a person other than:

(i) the consent authority, or

(ii) the Director-general of National Parks and Wildlife as referred to in

Section 79B(3) of the Environmental Planning & Assessment Act,

1979;

(i) The land is not the site of an item of the environmental heritage that:

a) is identified as such in an environmental planning instrument

applying to the land, or

b) is listed on the State Heritage Register under the Heritage Act 1977,

or



c) is subject to an interim heritage order under the Heritage Act 1977;

or

unless, in relation to item (b) or (c) the works are identified in the NSW

Heritage Office’s Standard Exemptions for Works Requiring Heritage

Council Approval;

e) Any building involved meets the relevant deemed to satisfy provisions of

the Building Code of Australia;

f) Any existing building involved that is classified under the Building Code of

Australia as Class 1b or Class 2 – 9 has a current fire safety certificate or

fire safety statement, or the building is a building for which no fire safety

measures are currently implemented, required or proposed;

g) It is located more than 1 metre from any easement, public water main or

public sewer main;

h) It has an approval, if required by the Local Government Act 1993, from the

Council for an on-site effluent disposal system if the development is

undertaken on unsewered land;

i) It is not carried out on land that is identified in an environmental planning

instrument as contaminated land, or that has at any time previously been

used:

(i) as a service station, or

(ii) as a sheep or cattle dip, or

(iii) for intensive agriculture, or

(iv) for mining (but not underground mining) or an extractive industry, or

(v) for waste storage or waste treatment, or

(vi) for the manufacture of chemicals, asbsestos, or asbestos products,

unless a Statement has been presented to the consent authority confirming

that the land has been remediated, audited or certified as not

contaminated;

(i) It is for or relates to development that is permissible in the zone in which it

is carried out or has been lawfully commenced.

For the purposes of this provision, environmentally sensitive area for exempt or

complying development means:

(ii) critical habitat of an endangered species, population or ecological

community identified under the Threatened Species Conservation Act 1995

or the Fisheries Management Act 1994; or

(iii) Wilderness Area within the meaning of the Wilderness Act 1987; or

(iv) coastal waters of the State within the meaning of this Plan (note: defined

in Standard LEP Template dictionary); or

(v) a coastal lake (note: defined in Standard LEP Template dictionary); or

(vi) land that is reserved as a State conservation area under the National Parks

and Wildlife Act 1974; or

(vii) that is identified in this or any other environmental planning instrument as

being of high Aboriginal cultural significance or high biodiversity

significance; or

(viii) that is mapped as wetland by State Environmental Planning Policy No 14—

Coastal Wetlands; or

(ix) that is mapped as rainforest by State Environmental Planning Policy No

26—Littoral Rainforests; or



(c) a declared Ramsar wetland within the meaning of the Environment

Protection and Biodiversity Conservation Act 1999 of the

Commonwealth; or

(d) a declared World Heritage property within the meaning of the

Environment Protection and Biodiversity Conservation Act 1999 of

the Commonwealth; or

(e) land declared as an aquatic reserve under the Fisheries Management

Act 1994; or

(f) land declared as a marine park under the Marine Parks Act 1997; or

(g) land reserved or dedicated under the Crown Lands Act 1989 for the

preservation of flora, fauna, geological formations or for other

environmental protection purposes.



Appendix A Schedule 1: Exempt Development

The following Schedule identifies development types which are exempt

development and the requirements that must be met by that development.

Where the requirements are met, the proposal does not require consent. Where

the requirements are not met, the proposal is not exempt development.

The requirements at Section 1 of this Schedule apply to all development of the

type identified.

In addition to the requirements at Section 1, exempt development that is on the

following land must meet the criteria identified at Section 2:

1. Land identified in this Plan or in a Development Control Plan adopted by the

Council as being subject to any of the following environmental constraints:

- Bushfire;

- Salinity;

- Acid sulphate soils;

- Contamination;

- Heritage conservation;

- Subsidence, slip or erosion.

2. Land that is zoned for urban purposes and is within:

- 40 metres of a perennial watercourse;

- 100 metres of land reserved as a State conservation area under the

National Parks and Wildlife Act 1974;

- 100 metres of land mapped as wetland by State Environmental Planning

Policy No 14 – Coastal Wetlands;

- 100 metres of land mapped as rainforest by State Environmental

Planning Policy No 14 – Littoral Rainforests;

- 100 metres above mean high water mark of the sea, a bay or an

estuary.

Note: Clause 15 of the Standard LEP Template exempts the following subdivision,

including boundary adjustments from the need for development consent:



(a) widening a public road,

(b) making an adjustment to a boundary between lots, being an

adjustment that does not involve the creation of a greater number of lots,

(c) a minor realignment of boundaries that does not create additional

lots or the opportunity for additional dwellings,

(d) a consolidation of lots that does not create additional lots or the

opportunity for additional dwellings,

(e) rectifying an encroachment on a lot,

(f) creating a public reserve,

(g) excising from a lot land that is, or is intended to be, used for

public purposes, including drainage purposes, rural fire brigade or other

emergency service purposes or public conveniences.

Clause 35(3) of the Standard LEP Template also exempts the following minor

works to heritage items and on land that is within a heritage conservation area

from the need for development consent:

(a) the applicant has notified the consent authority of the proposed

development and the consent authority has advised the applicant in

writing before any work is carried out that it is satisfied that the

proposed development:

i. is of a minor nature, or is for the maintenance of the

heritage item, archaeological site, or a building, work,

relic, tree or place within a heritage conservation area,

and

ii. would not adversely affect the significance of the

heritage item, archaeological site or heritage conservation

area, or

(b) the development is in a cemetery or burial ground and the proposed

development:

i. is the creation of a new grave or monument, or excavation or

disturbance of land for the purpose of conserving or repairing

monuments or grave markers, and

ii. would not cause disturbance to human remains, relics,

Aboriginal objects in the form of grave goods, or to a place of

Aboriginal heritage significance, or

(c) the development is limited to the removal of a tree or other

vegetation that the Council is satisfied is a risk to human life or

property, or

(d) the development is exempt development.



Section 1: Standard requirements for exempt development

1.0 Advertising structures and displays

The erection and display of an advertising

structure and advertisement, or the display of

an advertisement that is not on an advertising

structure (but not an illuminated sign in a

residential zone) that satisfies any of the

following requirements:

(a) The advertisement displays a message

relating to the premises or goods and

services that are available from the

premises on which the advertisement is

situated and the advertisement and any

structure together have an area not

exceeding:

(i) 0.75 square metres in a residential or

rural zone, or

(ii) 8 square metres in an industrial zone,

with a maximum height of 4.6m, or

(iii) 25% of the front elevation of a

building on which it is displayed in a

commercial business zone, with a

maximum height of 3m or the height of

the underside of any awning measured at

the line at which it is attached to the

building, whichever is the greater.

(b) The advertisement is behind a shop

window.

(c) The advertisement is a temporary

advertisement for a social, cultural,

political or recreational event that is

displayed no more than 28 days before

the event. The advertisement must be

removed within 14 days after the event.

(d) The advertisement is a public notice

displayed by a public authority giving

information about a service.

(e) The advertisement is a real estate sign

advertising that the premises on which it

is displayed are for sale or lease, and the

advertisement and any structure have a

total maximum area of 2.5 square metres

on residential or rural premises, or 4.5

square metres on commercial or industrial

premises.

(f) The advertisement replaces one of the

same, or a larger, size lawfully displayed

on the same structure.

(g) The advertisement and any structure are

not visible from outside the site on which

they are displayed.

Advertisements on transport corridor land

The following development on transport

corridor land is exempt development when



carried out by or on behalf of the RTA or

RailCorp:

(a) display of an advertisement in an

underground railway station or railway

tunnel,

(b) display of an advertisement at a railway

station or bus station if the

advertisement is visible primarily from

within the railway corridor or bus

station,

(c) removal of existing signage,

(d) modifications to existing signage on

transport corridor land carried out to

meet occupational health and safety

requirements and that do not increase

the advertising display area of the

signage.

Electoral matter relating to Federal,

State or local government elections

The display of any poster that contains

electoral matter in relation to an election

is exempt development if the poster:

(a) is no larger than 8,000 square

centimetres, and

(b) is displayed by or on behalf of a

candidate at the election or the party (if

any) of any such candidate, and

(c) is displayed in accordance with any

requirements of the Act under which

the election is held, and

(d) is displayed only during the relevant

period.

In this schedule:

election means an election held under

the Commonwealth Electoral Act 1918 of

the Commonwealth, the Parliamentary Electorates and Elections Act 1912 or the

Local Government Act 1993.

electoral matter means:

(a) any matter that is intended or calculated

or likely to affect (or is capable of

affecting) the result of an election or

that is intended or calculated or likely to

influence (or is capable of influencing)

an elector in relation to the casting of

his or her vote at an election, and

(b) the picture of a candidate at an election,

along with the candidate’s name and

the name of the party (if any) of any

such candidate.

relevant period, in relation to an

election, means the period comprising

the following:

(a) the period of 5 weeks immediately

preceding the day on which the election

is held,

(b) the election day,



(c) the period of 1 week immediately

following the election day.

Council may insert additional categories

2.0 Development ancillary to a lawful use

Development (like landscaping, gardening,

paving or the erection of a minor structure,

but not building alterations) that is related to a

lawful use

(a) any such minor structure is erected at least

1 metre from each boundary of the site

and extends no more than 3 metres above

natural ground level, and

(b) any such minor structure, or any paving or

hard surface area, does not cover more

than 25 square metres, and

(c) the development does not involve

excavation deeper than 600 millimetres

below natural ground level and maintains

support for any neighbouring buildings and

land, and

(d) the development does not involve

handling, storing or using hazardous

chemicals or materials otherwise than on a

domestic scale (except on farms and at a

distance of more than 25 metres from any

habitable building and at a distance of

more than 40 metres from a watercourse),

and does not release any hazardous

chemicals or materials or any pollutants

into the environment, and

(e) the development complies with the

landscaped area or site coverage control

specified in an environmental planning

instrument or a development control plan

Note. Developments that increase water use or

involve disposal of trade wastes may require a

certificate of compliance from the local water

supply and sewer authority.

<For example:

Barbeques: Setback 450mm from boundary and

maximum height is 1.8m.

Bird Cages: Maximum Height 2.4m and located

minimum of 10m from the existing dwelling.

Cabanas; cubby houses; garden sheds;

gazebos: Maximum height 2.5m and minimum

setback of 900mm to side and rear boundaries

in residential zones.

Carports: Maximum height of 3m and minimum

setback to side and rear boundaries of 500mm.

Carports facing the street are to be

setback at least 5.5 metres from the

front boundary, or at least to the



average of the minimum setbacks of

any like structures on land on each side

of the subject property, whichever is

greater.

Decks (unroofed): Maximum height above

ground level 1m and maximum width 2.5m. The

side boundary setback is 900mm. Maximum

area is 20m².

Letterbox: Maximum height of 1.2m above

ground level.

Patio (unroofed): Setback 900mm from side and

rear boundary. Maximum area 20m².

Pergola (open roof and sides): Maximum height

3.0m and setback of post supports 900mm

from side boundary. Roof timbers to be a

minimum setback of 500mm form rear and side

boundary. Maximum area 20m².

Pigeon Cages/Lofts: Loft or cage to be not less

than 9 m to any house and not less than 1m to

side or rear boundary.

Playground Equipment: Residential: Maximum

height of 2.5m. Non Residential: Maximum

height of 2.5m.

Poultry Houses: Maximum height of 3m and

structure to be behind front building line with

minimum 3m setback to side and rear

boundaries.

Shade Structures: Maximum height of 3m, with

minimum setback of 900mm to side and/or rear

boundaries and located behind building line.

Rainwater tanks may be installed as exempt

development in accordance with Part 4 of State

Environmental Planning Policy No 4—

Development Without Consent and

Miscellaneous Exempt and Complying

Development

Fences: Erection of boundary fences that

comply with any relevant covenant or council

policy and: (a) that are not more than 1.8

metres high if either in a rural zone or behind

the building line in an urban zone, but do not

include any masonry construction over 900

millimetres above ground level, or

(b) that are not more than 900 millimetres high



if forward of the building line in an urban zone,

(c) are not more than 3.0 metres in an industrial

zone;

and are made of non-combustible materials if

located in a fire protection zone or an asset

protection zone identified in a bushfire risk

management plan in force under the Rural Fires

Act 1997.

Flag poles: The erection of a single flagpole on a

site if the flagpole is not more than 6 metres

high and is structurally sound, not in an

Environmental Protection Zone, maximum

height 6m and must be structurally adequate.>

Councils may insert additional categories

3.0 Subdivision

Subdivision under the Strata Schemes (Freehold

Development) Act 1973 or the Strata Schemes

(Leasehold Development) Act 1986, except:

(a) in the case of a building to which

State Environmental Planning Policy

No 10 – Retention of Low Cost Rental

Acceommodation applies, or

(b) where the building has been designed

or approved for occupation as a single

unit

Nil


4.0 Building alterations

This section may be extended to apply internal structural alterations, subject to

compliance with structural engineering and BCA requirements.

Building alterations (but not the making of, or

an alteration to the size of, any opening in a

wall or roof of a building, such as a doorway,

window or skylight) comprising:

(a) non-structural alterations to the exterior of

a building, such as painting, plastering,

cement rendering, cladding, attaching

fittings and decorative work, or

(b) non-structural alterations to the interior of

a building that do not result in the current

load-bearing capacity of the building being

exceeded.

Nil

Internal structural alterations Council to insert appropriate criteria



5.0 Demolition

Demolition carried out in accordance with AS

2601–1991 The demolition of structures of

any structure:

(a) the erection of which would be exempt

development <under this Policy>, and

(b) that covers an area of not more than 25

square metres.


6.0 Change of use

A new use of a lawfully existing building that

continues to comply with all other

development consent conditions if:

(a) the new and proposed uses are permissible

within the zone; and

(b) the new use is consistent with the

classification of the building under the Building

Code of Australia and replaces a former use

being carried out in accordance with a

development consent, and:

(i) it is not actually or potentially a

hazardous or offensive industry,

and

(ii) it does not involve the handling,

preparation or storage of food

for sale or consumption, and

(iii) it is not prohibited by any

provision in an environmental

planning instrument applying to

the land, or

(c) the new use results from a change of

building use from a shop to an office or from an

office to a shop that is not in the business of

handling, preparing or storing food for sale or

consumption, where:

(i) the new use replaces a former

use being carried out in

accordance with a development

consent, and

(ii) not more than 200 square

metres of floorspace is changed

in use, and

(iii) the new use is not prohibited by

any provision of an

environmental planning

instrument applying to the land.




7.0 Home occupations

The use of premises for an occupation carried

on only by the permanent residents of a

dwelling:

(a) that does not require registration under the

Factories, Shops and Industries Act 1962, and

(b) that is managed so that there is no

interference with the neighbourhood.

8.0 Public meetings

The use of a class 9b building under the Building

Code of Australia for the purpose of a public

meeting that is conducted so that there is no

interference with the neighbourhood.

9.0 Rural development

Development (like rural sheds, bore tripods,

stables and the like) on land zoned rural or non-

urban or the like, but not on land zoned rural

residential or the like, that is related to a

permissible use if:

(a) the structure is set back at least 10 metres

from any boundary, and

(b) the structure does not cover more than

300 square metres, and

(c) the ground floor level of the structure is

not greater than 1 metre from the natural

ground level, and

(d) the height of the structure does not exceed

10 metres, and

(e) any spillage from chemicals or fuel stored

within the structure will be caught by an

adequately sized bund.

10.0 Filming

As per Standard LEP Template

11.0 Satellite dishes


12.0 Rainwater tanks




Section 2: Additional provisions for exempt development on land subject to environmental constraints

Note: Standard provisions for land subject to the following categories of environmental

constraints are to be developed in consultation with the relevant public agency for

insertion into the Schedule

Bushfire For example:

Any structure located in a fire protection zone

or an asset protection zone identified in a bush

fire risk management plan in force under the

Rural Fires Act 1997 must be made of non-

combustible materials

Flood risk

Salinity

Acid sulphate soils

Contamination

Heritage conservation area

Slope

Subsidence, slip or erosion

Within 40 metres of a perennial watercourse

identified by a 1:50,000 topographical map

held by the Land Information Centre

Within 100 metres of land reserved as a State

conservation area under the National Parks and

Wildlife Act 1974

Within 100 metres of land mapped as wetland

by State Environmental Planning Policy No 14

– Coastal Wetlands

Within 100 metres of land mapped as

rainforest by State Environmental Planning

Policy No 14 – Littoral Rainforests

Within 100 metres above mean high water

mark of the sea, a bay or an estuary



Appendix B Schedule 2: Complying Development

The following Schedule identifies development types which are complying

development and the requirements that must be met by that development.

Where the requirements are met, a Complying Development Certificate may be

issued. Where the requirements are not met, the proposal is not complying

development.

The requirements at Section 1 of this Schedule apply to all development of the

type identified.

In addition to the requirements at Section 1, complying development that is on

the following land must meet the criteria identified at Section 2:

1. Land identified in this Plan or in a Development Control Plan adopted by the

Council as being subject to any of the following environmental constraints:

- Bushfire;

- Salinity;

- Acid sulphate soils;

- Contamination;

- Heritage conservation;

- Subsidence, slip or erosion;

- Flood risk

2. Land that is zoned for urban purposes and is within:

- 40 metres of a perennial watercourse;

- 100 metres of land reserved as a State conservation area under the

National Parks and Wildlife Act 1974;

- 100 metres of land mapped as wetland by State Environmental Planning

Policy No 14 – Coastal Wetlands;

- 100 metres of land mapped as rainforest by State Environmental

Planning Policy No 14 – Littoral Rainforests;

- 100 metres above mean high water mark of the sea, a bay or an

estuary.



Section 1: Standard requirements for complying development

1.0 Single Dwellings

Single dwellings including:

� Erection of a detached dwelling of not

more than 2 storeys on lots greater than

450 sq m

Not including:

� Dual Occupancies; or

� Secondary dwellings; or

� New dwellings on lots smaller than 450

m2.

Not on land:

� Within a Class 1 or Class 2 Acid Sulphate

Soil risk category;

� Subject to subsidence, slip or erosion;

� Contaminated.

6.2.1 Design and Siting

� Development complies with minimum lot

size, building height and floor space ratio

controls in local environmental plan (if

applicable)

� Minimum lot width at the front building

line equal to or greater than 15 metres

� Total site coverage is less than 50% of

the site area

� Building eaves are between 450 mm and

600 mm in depth

� Has direct connection to a Sydney Water

Sewer or has an approval, if required by

the Local Government Act 1993, from

the Council for an on site effluent disposal

system if the development is undertaken

on unsewered land

� Lot fits within the preferred orientation:

(a) 340° – 30° (northern orientation)

(b) 70° – 120° (eastern orientation)

(c) 160° – 210° (southern orientation)

(d) 250° – 300° (western orientation)

<insert diagram>



� For development in <insert specified land

use zones> zones, the following

additional criteria apply < to be inserted

by Council>

Note: This additional criteria inserted by

the Councils must not detract from the

standard provisions.

Setbacks

� Street setbacks – each part of the

structure is to be setback at least 4

metres from the front boundary

� If the dwelling comprises two storeys, the

upper storey is setback at least 6 metres

from the street frontage property

boundary

� Garages facing the street are to be

setback at least 5.5 metres from the front

boundary, or at least to the average of

the minimum setbacks of any like

structures on land on each side of the

subject property, whichever is greater

� The dwelling has side setbacks of more

than 900 mm from the property boundary

at ground level


upper storey is setback more than 1.5

metres from the side property boundary

� The rear of the dwelling is setback at

least 2 metres from the rear boundary


upper storey is setback at least 2 metres

from the rear property boundary




by Council>




Privacy

� Windows in habitable rooms having an

out look to a window to a habitable room

in an adjoining dwelling within 6m must:

- be offset by a distance of 500mm

from the window of the adjoining

dwelling; or

- have sill heights of 1.7 metres



above floor level; or

- have fixed obscured glazing in any

part of the window less than 1.7

metres above floor level; or

have fixed exterior screens or any part of the

window less than 1.7 m above floor level.

Site coverage and landscaped open space

� An area of Landscape Open Space (LOS)

at ground level as a landscaped or

naturally vegetated area shall be provided

for each dwelling. The LOS is to be a

permeable area that is unroofed

(excluding eaves <450mm to fascia

board), soft landscaping, excluding

swimming pools, roofed outdoor rooms

and paved areas used for carparking.

� The minimum LOS is 30% of the

allotment area.

� The maximum site cover is 50% of the

allotment area for the ground floor and

25% for the upper floor.

� Subsoil drains are to be installed around

the perimeter of residences and

connected to the stormwater system to

prevent accumulation of water and

concentration of salts




by Council>




Private open space

� Private open space for each dwelling at

ground level is to contain a “principal

private open space” (PPOS) area adjacent

to a living room with a minimum area of

24 sq m, a minimum dimension of 4m

and a gradient of not more than 1:10. On

steeper sites, PPOS is to be terraced to

provide useable space.

� 50% of the area of the PPOS (of both the

proposed development and adjoining

properties) should receive at least 3 hours

of sunlight between 9am and 3pm at the

winter solstice (21 June).



� Private open space shall be a minimum of

20% of the area of the allotment.

� Land less than 2m in width does not

qualify as private open space.

� “Alfresco rooms” or “Outdoor rooms” and

the like may be included in the calculation

of Private Open Space.

� Private open space is to be located behind

the building façade line.

� The location of PPOS is to be determined

with regard to dwelling design, allotment

orientation, adjoining dwellings, landscape

features and topography. Figure xxx

contains the preferred locations of PPOS

based on lot orientation.

� <insert figure>




by Council>




Site access, car parking and garages

Garages

� Garages are to have minimum clear

internal dimensions of 3m width x 5.5m

length for a single garage or 5.6m width x

5.5m length for a double garage.

� Carports and garages facing public streets

are to be no more than 50% of the

building façade width.

� External access is to be provided for

vehicles and/or people to backyards,

either through the garage or a

path/driveway.

� Detached garages are not to exceed an

area of 40m2, be located behind the rear

wall of the house and to have a setback

of 900mm from boundaries.

� On allotments >20m wide where triple

garages are permitted the third garage is

to be set back an additional 1m from the

garage line.

� The location of driveways is to be

determined with regard to dwelling design

and orientation, street gully pits and tree



bays and is to maximise the available on-

street parking.

� Figure xxx provides the preferred garage

location based on the allotments

orientation.

� <insert figure>




by Council>




Site Access

� Driveways are to be a minimum of 1.0m

clear of all drainage structures on the kerb

and gutter and existing public utility

infrastructure.

� Driveways are to be a minimum of 1.5m

clear of street trees.

� On corner lots driveways are to be a

minimum of 6m from the point of

intersection of the two property

boundaries.

� Driveways are to be in accordance with

AS2890.

� Footpath crossings are subject to an

application to Council to undertake a

Public Road Activity




by Council>




Car Parking

� Two bedroom dwellings are to have a

minimum of 1 garage space.

� Three or more bedroom dwellings are to

have a minimum of 2 garage spaces.




by Council>






Tree protection

� Any proposed dwelling is to be situated

outside of the drip line of any existing tree

having a height greater than 3.5m other

than where separate approval has already

been obtained from Council for removal of

the tree.

� No excavations will take place within 5m

of any existing tree having a height

greater than 3.5m other than where

separate approval has already been

obtained from Council for removal of the

tree.

Energy Efficiency

� A BASIX certificate is to be obtained for

the dwelling.

2.0 Single dwellings – alterations and additions

Alterations and additions to the dwelling must

not:

� be built within 1 metre of an easement or

overland flowpath;

� breach any covenant to which the Council

is a party;

� be located within a zone of influence of a

public sewer main; and


public stormwater drainage pipe;

� be undertaken without the written

approval of the relevant person or

authority granting an easement or

covenant or occupation.

Design and siting

� Complies with controls in <relevant

section of DCP – reference to be inserted

by Council>

� Has an existing connection to a Sydney

Water Sewer.

Floorspace

� Not to exceed the maximum floor space

ratio permissible on the land in an

environmental planning instrument.

Height

� Maximum wall height of 7 metres.

� Maximum ridge height of 9 metres.

� The finished floor level on the ground floor

is not to exceed 500mm above natural

ground level.

Open Space

� Private open space shall be a minimum of

20% of the area of the allotment with a

minimum dimension of 3 metres.

Privacy

� Windows in habitable rooms having an out

look to a window to a habitable room in an

adjoining dwelling within 6m must:





dwelling; or

- have sill heights of 1.7 metres above

floor level; or



metres above floor level; or

- have fixed exterior screens or any

part of the window less than 1.7 m

above floor level.

Setbacks

� A minimum of 900mm to all boundaries

with eaves having a minimum setback of

675mm; or

� Where the existing dwelling wall is located

on the boundary an alteration or addition

may be adjacent to the boundary subject

to compliance with the building to the

boundary provisions of the Building Code

of Australia and a maximum extension to

any party wall of 3 metres in length.

Solar Access

� Solar access is not to be reduced or is to

be maintained to adjacent habitable rooms

for a minimum period of 3 hours between

9.00am and 3.00pm at the winter

solstice, or where less than 3 hours solar

access is currently available, no additional

overshadowing is permitted.

� Solar access to adjacent properties’ PPOS

is not to be reduced or is to be maintained

over a minimum of that space for a period

of at least three hours between 9.00am

and 3.00pm at the winter solstice

Energy Efficiency

� A BASIX certificate is to be obtained for

the dwelling (where applicable).

Site Coverage

� The total site coverage of buildings on the

property is not to exceed the maximum

specified in the table below

� <to be inserted>

Stormwater

� Where the impervious surface area of the

site increases by more than 40m2, an on-



site detention system shall be provided in

accordance with local controls.

Waste Management and Minimisation

� A screened accessible waste bin storage

area capable of housing Council’s standard

waste and recycling containers is retained

or provided on-site in accordance with

local controls.

� A Waste Management Plan is prepared in


2.1. Single dwellings – specific alterations and additions

Readers’ note:

Councils may list specific alterations and additions in this schedule to

accommodate local conditions, in addition to those listed in 1.2 above. These

standards should reference other sections of the DCP and would not be permitted

to be more restrictive for complying development than other types of

development.

Any development listed below is also subject to

the controls listed in 1.2 above. The controls in

this section apply in the event of an

inconsistency,

Specific development types to be inserted by

the council – for example:

Dormer windows � <Insert relevant controls from DCP>

Alterations and additions to residential flat

buildings

� <Insert relevant controls from DCP>

Enclosing balconies � <Insert relevant controls from DCP>

3.0 Complying development that is ancillary to

buildings lawfully in existence

This development applies to single dwellings

only, and the development must not:

� be located in front of the building

alignment to the principal street frontage.

Ancillary development to buildings must not:

� be built over an easement or overland

flowpath;

� breach any covenant to which the Council

is a party;


Design and siting

Height

� The maximum height of ancillary

development is not to exceed 3.6 metres

with a maximum wall height not

exceeding 3 metres from natural ground

level; and

� If located on the boundary the maximum

height of the ancillary development shall

not exceed 2.7 metres from natural



public sewer main;


public stormwater drainage pipe; or

� be undertaken without the written

approval of the relevant person or

authority granting an easement or

covenant or occupation.

ground level at the boundary.

Setbacks

� Ancillary development may be built to the

boundary subject to compliance with the

provisions of the local plan and the

Building Code of Australia.

Solar Access

� Solar access is not to be reduced or is to

be maintained to adjacent habitable rooms

for a minimum period of 3 hours between

9.00am and 3.00pm at the winter

solstice, or where less than 3 hours solar

access is currently available, no additional

overshadowing is permitted; and

� Solar access to adjacent properties’ PPOS

is not to be reduced or is to be maintained

over a minimum of that space for a period

of at least three hours between 9.00am

and 3.00pm at the winter solstice.

Privacy

� Windows in habitable rooms having an out

look to a window to a habitable room in

an adjoining dwelling within 6m must:



dwelling; or

- have sill heights of 1.7 metres above

floor level; or



metres above floor level.

Noise

� Ancillary development to buildings shall

not cause noise levels exceeding 5dBA

above ambient background levels at

adjoining property boundaries.

Car Parking

� Ancillary development shall not reduce

existing on site parking provision to less

than that required for the use of the

property.

Landscaped Area

� An ancillary development must not reduce

the total soft landscaped area of a

property to less than 20%.

Site Coverage



� An ancillary development must not exceed

the maximum site coverage specified in

the table below.

� <insert table>

Waste Management

� A Waste Management Plan in accordance

with local controls

3.1. Additional complying development

Readers’ note:

Councils may list specific additional complying development requirements in

this schedule to accommodate local conditions, in addition to those listed in

1.3 above. These standards should reference other sections of the DCP and

would not be permitted to be more restrictive for complying development

than other types of development.

Any development listed below is also subject to

the controls listed in 1.3 above. The controls in

this section apply in the event of an

inconsistency,

Fences Insert reference to relevant controls from local

DCP

Disabled access ramps Insert reference to relevant controls from local

DCP

Driveways (to buildings other than dwellings) Insert reference to relevant controls from local

DCP

4.0 Change of use (to industrial and commercial

development)

Readers’ note:

This clause relates to development defined as:

� business premises

� food and drink premises

� industry

� kiosk

� light industry

� neighbourhood shop

� office premises

� retail premises

� rural industry

� warehouse or distribution centre



in the Standard Local Environmental Plan.

� The external façade of the building shall not

be altered. For example there shall be no

increases in window, door, wall or roof

sizes.

� No increase in the total floor area of the

building.

� Not to involve the carrying out of any

alterations other than those exempted by

this Plan.

� No more than 200m2 of gross floor area.

� The new use must replace a previous use

already approved.

� All conditions that have previously been

imposed on the use of the building or the

use of the land that relate to:

- The maintenance of landscaping;

- The parking of vehicles;

- The provision of space for the loading

and unloading of goods and vehicles;

and

- environmental protection;

must be adhered to.

� An Occupation Certificate and Fire Safety

Certificate are issued prior to use of the

building.

5.0 Internal and external alterations and additions

and fitouts to shops, commercial and industrial

buildings

Readers’ note:

This clause relates to development defined as:

� business premises

� food and drink premises

� industry

� kiosk

� light industry

� neighbourhood shop

� office premises

� retail premises

� rural industry

� warehouse or distribution centre



in the Standard Local Environmental Plan.

Internal and external alterations to shops and

commercial premises and industrial buildings

that alter the load bearing capacity of load

bearing walls or other components if the

alterations comply with the following

development standards and requirements in any

relevant environmental planning instrument.

The alterations or additions must not:

� alter the size or shape of the building

envelope;

� cumulatively increase or decrease the area

of openings by more than 10%;

� increase the total gross floor area of the

building;

� contravene any conditions that apply in

respect of any current development

consent for the use of the building or

change the use of any part of the building

(other than as permitted by 1.4);

� reduce the provision for the loading or

unloading of goods or vehicles in respect

of the building;

� alter any public services/utilities without

the approval of the relevant authority.

Where the new use involves a change in the

type or volume of trade wastes from the

premises, or an increase in water or

wastewater usage, a Section 73 Compliance

Certificate may be required from Sydney

Water. Where required, a Section 73

certificate is to be obtained and provided to

the Certifying Authority prior to the

commencement of works.

Design and siting

Equity of Access and Mobility

� In the case of a change of use for the

purpose of commercial premises, shop, or

restaurant an appropriately qualified

person, shall certify that the proposed

development is consistent with the

Disability Discrimination Act, 1992.

Waste Management

� A Waste Management Plan is prepared in


Materials and Components

� New materials used eexternally are to be

consistent with the existing materials.

For new industrial development in new

industrial estates where a

masterplan/concept plan has been

approved for the estate development

including approval issued for the estate

Design and siting

� Building walls to be located 15m from the

principal street frontage (unless stated in

an approved materplan/concept plan) and

3m form any side or rear boundary

� Secondary corner setvacks to be



infrastructure.

Development must be carried out in

accordance with the requirements of

the Environmental Protection Authority

and Workcover Authority.

All aspects of the structure shall comply

with the Building Code of Australia.

minimum 7.5m

� Fences up to 1800mm may be located

within the landscaped building setback

� Main entry to building is to be easily

identifiable and directly accessible from

the street

� Setback, building form and carparking to

be in compliance with an adopted DCP or

approved masterplan/concept plan

Lot size and FSR

� Maximum site area of 40,000m2 with

maximum FSR of 0.5:1, or as determined

by approved masterplan/concept plan

Cut and fill

� The maximum cut permitted on a building

platform is limited to 900mm and fill to

600mm

Site coverage

� Not to exceed 65% (includes awnings)

� At least 10% of the site

� Landscaping plan to be designed by

qualified landscape Architect. Design to

include:

- Minimum 3m landscaped strip to be

provided to all street frontages.

Includes 3m splay at the egress

driveway, not exceeding 600mm in

height.

- Features to reduce the visual impact

of industrial buildings and hard stand

areas

- Mounding to be provided frontages to

main roads and major access roads to

screen parking areas, building facades

and security fencing

- 2.0m-wide landscape bay, containing

shade trees, be provided between

every 10 carspaces.

Building height

� Not to exceed 15 metres

� Maximum wall height not to exceed

7.2mm (excluding any parapet), or not to

exceed existing building height

� Parapets may extend maximum 1.2mm

above the intersection of the wall and

roof

� Maximum roof pitch 10 degrees.

Traffic and access

� Driveway and turning circle width not to

be less than that specified by the Roads

and Traffic Authority or Council.

� No change permitted to existing

driveways.



� Vehicle loading and storage areas are

designed and located to be unobtrusive

from the street.

� Heavy vehicles accessing/egressing the

site do not residential streets.

� Carparking to be provided at the rate of 1

space/75m2 GFA or 1 space/2

employees, whichever is greater.

� Where additional office space exists in

the building, or is proposed, carparking to

be provided at the rate of 1 space/35m2

GFA or 1 space/2 employees, whichever

is greater.

Drainage

� All roof and surface storm drainage to be

drained into Council system or private

drainage easement

� Stormwater drainage plan to be designed

by a qualified Hydraulics Engineer, for a

10 year return period.

� On site detention to be provided

� Discharges to Council’s kerb and gutter to

be in accordance with Australian Rainfall

and Runoffs.

� Preventative measures to be undertaken

to address soil erosion and maintain water

quality.

Staff facilities

� On-site recreation areas are provided for

staff

6.0 Advertising (structures and messages)

<Refer to relevant section of council DCP>

7.0 Bed and breakfast accommodation

� The premise is lawfully approved for the

purpose of a dwelling-house.

� The establishment is operated solely by the

permanent residents of the dwelling and

does not employ persons not permanently

residing on the site.

� A maximum of 6 guests with the total

number of occupants of the house not to

exceed 12.

� Minimum 5.5m2 of bedroom floor area per

person (sleeping)

� A minimum of 2 bathrooms.



� On-site carparking to be provided (behind

the building line in residential zones) on the

basis of 1 space per guest room with such

spaces sited so as to maintain the amenity

and character of the locality and comply

with Council’s Development Control Plan

� A smoke detector system that complies

with AS3786-1993 – Smoke Alarms and

AS3000-1991 – Electrical Installation for

Buildings, Structures and Premises (the SAA

wiring rules) is in the dwelling.

� A fire extinguisher and fire blanket are in the

kitchen.

� Approval has been obtained from the

owner’s corporation, or the community,

precinct or neighbourhood association,

where a dwelling is subject to the Strata

Schemes Management Act 1996 or the

Community Land Management Act 1989.

� Each guest bedroom is provided with space

and facilities for occupants to store clothes

and travel gear.

� Each guest bedroom is provided with natural

light and either natural or mechanical

ventilation.

� Bedding and flooring is provided to each

guest bedroom that is easily cleaned.

� No key release deadlocks are fitted to guest

bedrooms or exit doors.

� Guest bedrooms are insulated from all noise

generating sources in accordance with BCA

requirements.

� Only one external sign is provided on or

behind the building line having a maximum

area of 0.72m2.

� No food preparation in guest rooms.

A kitchen used for the preparation of guest’s

food shall satisfy the following requirements:

(a) preparation benches are finished in a

material that is durable, smooth and

impervious to moisture and able to be

easily cleaned. Floors and walls would

need to satisfy the same requirements;

(b) the wall above the kitchen sink and

preparation benches shall be tiled to a

minimum height of 450mm.



8.0 Demolition

The development must not be undertaken to a

dwelling or building that is identified as an item

of environmental heritage under any

environmental planning instrument.

� The structure to be demolished would be

complying development under the

provisions of this plan and has a floor area

not exceeding 30m2.

� In a heritage conservation area the

structure to be demolished is to be located

behind the rear building alignment and is

not to be attached to the building.

� The work is carried out in accordance with

AS2601 – 1991 Demolition Code.

� A Waste Management Plan is submitted to

the Principal Certifying Authority, in

accordance with local controls 2 days

prior to the commencement of works.

9.0 Swimming pools

� Ancillary to a dwelling for private use only

and on lots over 450m2.

� The land has a direct connection to a

Sydney Water Sewer or an unsewered

allotment has an area of 5,000m2 or greater.

The Swimming Pool Act 1992

� All aspects of the swimming pool isolation

fencing shall comply with the Swimming

Pool Act 1992 and Regulations and AS

1926 – 1986 “Fences and Gates for Private

Swimming Pools”.

Siting

� The structure is not between the dwelling

and the front property boundary.

� The waterline of the pool must be a

minimum of 1.5 m from a side or rear

boundary or located no closer than 5.0 m

from a side or rear boundary on lots 2000m2

or greater.

� All coping or decking around the structure is

no more than 500mm above the existing

ground level.

� Above ground pools are to be no more than

1.2m above natural ground level with no

attached decking.

� Must not be located within a septic disposal

area.

� Shall not be located within 6.0m of the rear



property boundary, on lots between 3502m

and 900m2, unless the structure is the only

structure within 6.0m of the rear property

boundary.

Pool/Spa Design

� The swimming pool isolation fencing and

ancillary items shall be installed in

accordance with the provisions of AS1926

– 1986 “Fences and Gates for Private

Swimming Pools”.

� Location of fencing for private swimming

pools shall comply with the requirements of

the Swimming Pools Act 1992.

The installation and construction of the pool

complies, where relevant, with:

(a) AS/NZS 1838:1994 – Swimming Pools

– remoulded fibre-reinforced plastics –

Design and Fabrication, and AS/NZS

1839:1994 – Swimming Pools – pre-

moulded fibre-reinforced plastics –

installation, or

(b) AS2783-1992 – Use of reinforced

concrete for small swimming pools.

The pool shall not be used for commercial

purposes.

Noise

� Noise level of any filtration equipment or

pumps not to exceed 5dB(A) above

background noise level measured at the

property boundary during the hours 7.00am

to 10.00pm and no exceedence of noise

level above the background noise level

during the hours 10.00pm to 7.00am.

Open Space and Landscaping

� A minimum of 40% of the site is to be soft

landscaped, that is, not hard surfaces.

� A “principal area” of private open space

consisting of an area not less than 5m wide

and 5m in depth must be maintained

adjacent to the main living room.

� The development of a swimming pool must

not reduce the amount of private open

space to less than 20% of the area of the

allotment, with a minimum width of 2 m.

Drainage and Wastewater

� The areas surrounding the pool structure



shall be graded to divert surface and splash

water to a surface water collection

� Point connected to a stormwater drainage

system and clear of the proposed structures

and adjoining premises.

� All swimming pool wastewater must be

disposed of to the sewers of Sydney Water.

� In areas not serviced with a sewer the

swimming pool wastewater must not be

discharged to a septic tank or on-site

sewage management installation, or disposal

area.

In non-sewered areas, chlorinated pool

wastewater can either be disposed of by:

(a) Discharging to a rubble pit 600mm

wide x 600mm deep x 3.0 metres

long, located not less than 3.0 metres

from any structure. property boundary

or septic wastewater disposal area; or

(b) To a tail out drain to disperse the water

over a large grassed area or paddock,

provided that the land fall does not

direct water to buildings on the subject

or adjoining properties, or create a

nuisance to an adjoining property

owner.

� Saltwater pool wastewater must be

disposed of in the manner mentioned in (b)

above so that concentrated levels of salt do

not form in the vicinity of the rubble pit.

Cut and Fill

� The maximum cut and fill at coping level

permitted for the construction of a pool is

500mm (not pool shell excavation).

� The maximum cut/fill permitted on the

whole of a building platform is 500mm.

BASIX

� A BASIX certificate is to be obtained where

applicable.

Sediment and Soil Erosion

� Adequate measures shall be installed on-site

to minimise the processes of soil erosion

and maintain water quality. The measures

shall be in accordance with Council’s

Sedimentation and Erosion Policy.



Tree Preservation

� Any proposed pool or spa is to be situated

outside of the drip line of any existing tree

having a height greater than 3.5m other

than where separate approval has been

obtained from Council for removal of the

tree.

� No excavations will take place within 5m of

any existing tree having a height greater

than 3.5m other than where separate

approval has already been obtained from

Council for removal of the tree.



Section 2: Additional provisions for complying development on land subject to environmental constraints

Note: Standard provisions for land subject to the following categories of

environmental constraints are to be developed in consultation with the

relevant public agency for insertion into the Schedule

Bushfire For example:

Any structure located in a fire protection zone

or an asset protection zone identified in a bush

fire risk management plan in force under the

Rural Fires Act 1997 must be made of non-

combustible materials

the development complies with relevant

bushfire protection guidelines (Planning for

Bushfire Protection 2005)

Salinity

Acid sulphate soils

Contamination

Heritage conservation area

Subsidence, slip or erosion

Flood risk Complies with flooding provisions of an

environmental planning instrument or

development control plan.

Within 40 metres of a perennial watercourse

identified by a 1:50,000 topographical map

held by the Land Information Centre

Within 100 metres of land reserved as a State

conservation area under the National Parks and

Wildlife Act 1974

Within 100 metres of land mapped as wetland

by State Environmental Planning Policy No 14

– Coastal Wetlands

Within 100 metres of land mapped as

rainforest by State Environmental Planning

Policy No 14 – Littoral Rainforests

Within 100 metres above mean high water

mark of the sea, a bay or an estuary

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