What Rules? Local Government Land Use Decision Making for … · Local Government Land Use Decision...

What Rules? Local Government Land Use

Decision Making for Events in NSW

• Garry O’Dell

• PhD Candidate

• Newcastle Business School

• Faculty of Business and Law

University of Newcastle

City Futures 4 April 2014 - [email protected]

My Background

• UNSW School of Town Planning Graduate.

• I am a qualified town planner since 1981 and have worked in local government and private practice.

• Part-time PhD since July 2012.


Time is missing from planning

“That’s interesting!” (davis1971)


My research motivation is the result of the following:

• “…change the culture across all levels of planning in

NSW”

• Planners are viewed as a problem despite numerous

law changes so how do they make decisions.

• One council wanted to limit events to two 6000

person concerts annually.

• Another council had no issues with two concerts for

29,000 people on the same night.

• Residents object to commercial recreation groups

using “their” reserve.

• Open Gardens should be regulated. City Futures 4 April 2014 - [email protected]

What happened next? I started investigating and found:

• Planning for temporary land uses is relatively new.

• There are few rules and methodologies to inform the planning process for temporary land uses.

• NSW standardised its legislative approach for temporary land uses in 2006.

• There is decision making uncertainty in the NSW land use planning process.

A quick history of Temporary uses • Temporary use has many names :

“pop-up”, “temporary urbanism” ,“temporary city” ,“inter-while – meanwhile or interim”.

• In 2001 in Berlin, Urban Catalyst investigates the potential of temporary uses as a motor of urban change.

• 2012 temporary use of vacant spaces in Helsinki on the public agenda.

• 2013 Place Research Award “Pop Up City: Temporary Use Strategies for a Shrinking City,” Cleveland.

• 2013 Mill River Connecticut Planning Study


Carnivals Circuses,

Exhibitions, Festivals,

Filming,

Meetings, Parades, Recycling

Depots, Sporting Events

Concerts, Musical and

Theatrical

Festivals/Entertainment

Military Training Exercises.

Examples of temporary uses


Research Purpose

This qualitative research aims to understand analyse and interpret the uncertainty in the local government decision-making for temporary land use for the purposes of public, private or commercial events in the NSW Hunter Region.


Refining the Research Focus

Decision making

Public Sector

Land Use Planning

Temporary Land use - Events

Local councils

Hunter Region of NSW

Town planners


Events are inconsistently treated in the

land use planning process.

• In 2006, NSW amendments to planning

legislation resulted in an on-going

transition of event assessment to the

local government land use planning

process. The transition has not been

without issues.

• There are many rules, practices,

regulations and definitions of events,

conflicting governmental and

organizational priorities and community

expectations.


Date Activity Intention/Decision Implications/Outcome

1945 Town planning provisions inserted into the Local

Government Act

To control permanent development and

improve town health

No reference was made to

temporary use of land.

1980 Environmental Planning and Assessment Act (EPAA)

commences

To separate planning controls for land

activities from local government Act

No reference was made to

temporary use of land.

1983 High Court of Australia

Lizzio v Ryde Municipal Council

The Court ruled that an annual fete raising

funds for a charity is incidental to a

residence

Land use for the purposes of a

charity receive different assessment

1987 Land and Environment Court of NSW (LEC) Australian

Children's Foundation v Blacktown City Council

The Court ruled that a large concert did

not constitute use of land

The size of the event triggers a

different assessment process.

1992 LEC Sydney Cricket and Sports Ground Trust v City of

South Sydney

The Court ruled that a concert in the

Showground for 40,000 people is

development

Implies commercial events need a

more rigorous review

1993 New Local Government Act Council powers to regulate events on

public land

Regulation of private land for events

not included in the legislation.

1995 NSW LEC Gosford Council v Popran Creek Pty Ltd The Court ruled that a music festival for

2,500 people on rural land is development

Reinforces that commercial events

have a more rigorous review

1997 NSW LEC Baulkham Hills Council v Horseworld

Australia

The Court ruled that dance party for 1200

people does not fit the Council’s

exemption

Questions a Council’s interpretation

of controls

2001 NSW LEC Byron Shire Council v The Rising Damp

Corporation

The Court ruled that commercial public

dance party for 3,500 people required

Council approval

Land owner not prosecuted because

they did know about the party

2003 Changes to EPAA with focus on standardisation Legislative changes to simplify the plan

making system in NSW

Implementation and transitional

issues result in extensive delay in

local councils applying the new

legislation 2006 Standard Instrument Template adopted for all new

planning controls

Create a common format and content for

zoning plans for land and water

2010 NSW LEC Bellingen Shire Council v Lamir-Pike

Council planning control allow events

without approval The Court ruled that

development requires an approval

Creates an interpretation issue

2012 State Government proposes a new Planning Act and

Review of Local Government Act

To update rules and steam-line processes Ongoing delays

2014 89%of 152 Local Councils operate under the Standard

template

Legislation to improve consistency and

streamline processes

Outcome is uneven distribution :

Several councils granted

exemptions to the temporary use

process

Some Rule History

What are TLUEs?

A temporary land use for an event (TLUE)

includes:

• land, water or air based uses,

• either one-off or regular,

• commercial or not-for-profit,

• using temporary non-purpose-built

facilities,

• on land or water not primarily planned for

the activity.


Why are TLUE processes worth researching?

In 2007, the three year Australian Research Council funded Festivals

Project in NSW and Victoria (outside Sydney and Melbourne) and all

of Tasmania recorded:

• more than 2850 events across NSW, Victoria and Tasmania,

• generating $10 billion dollars for the local economies, and

• about 1300 regional events and festivals in NSW.

“Although most festivals were small, not-for-

profit and did well to earn a modest profit, the

sheer number and distribution of rural festivals

makes them a sizeable industry in a

cumulative sense.”(Chris Gibson & Stewart, 2009, p. 4)


SILEP STANDARD CLAUSE - 2.6B Temporary use of land [local]

(1) The objective of this clause is to provide for the temporary use of land if the use does not compromise future

development of the land, or have detrimental economic, social, amenity or environmental effects on the land.

(2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone

for a temporary purpose for a maximum period of 52 days (whether or not consecutive days) in any period of 12 months.

(3) Development consent must not be granted unless the consent authority is satisfied that:

(a) the temporary use will not prejudice the subsequent carrying out of development on the land in

accordance with this Plan and any other applicable environmental planning instrument, and

(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood,

and

(c) the temporary use and location of any structures related to the use will not adversely impact on

environmental attributes or features of the land, or increase the risk of natural hazards that may affect the

land, and

(d) at the end of the temporary use period the site will, as far as is practicable, be restored to the condition in

which it was before the commencement of the use.

Drafting direction.

Specific exclusions, as follows, from the 52 day period may be added for sales

offices, exhibition homes, builder’s site offices etc.

(4) Despite subclause (2), the temporary use of a dwelling as a sales office for a new release area or housing estate may

exceed 52 days (whether or not consecutive days) in any period of 12 months.

(5) Subclause (3) (d) does not apply to the temporary use of a dwelling as a sales office.

A new rule and more uncertainty?


The literature shows significant gaps and

unresolved issues

• Scarcity of literature on the land use planning and regulation of

temporary uses.

• Limited research about the efficacy of the planning assessment

process of events at the local government level.

• No adequate land use planning rules and methodologies exist to

guide decisions.

• Why is the NSW local government town planner’s decision-making

processes for the assessment of events clouded in uncertainty?



CULTURAL HISTORICAL ACTIVITY THEORY a powerful framework to analyse, interpret and understand the assessment process and its

components.

RQ1. How does the land use assessment activity for temporary events operate in NSW local government?


RQ2. What are the connections and relationships within the land use assessment activity for temporary events?


CHAT, the research questions and data

management.

OPERATIONALISING CULTURAL HISTORICAL ACTIVITY THEORY

QUESTIONS DATA MANAGEMENT

COLLECTION ANALYSIS

Research Questions Guiding Questions What data to collect Method of collection Data Source Justification Method Justification

STEP 1 - CLARIFY PURPOSE OF ACTIVITY SYSTEM RQ1. How does the temporary land use assessment activity for events operate in NSW local government? RQ2. What are the connections and relationships within the temporary land use assessment activity for events?

What is the activity? What are the objectives? What criteria exist to evaluate the outcome and objectives? What are the procedures to be followed? What are the roles of the respondents? Describe the work environment

Create list of problems – when and where they happen. Create list of motives, goals and expectations and who sets them. Examine communications in the activity

Policy and planning documents Semi-structured interviews Three Focus groups of 6 people sourced from the Hunter valley

Government Websites Event assessment reports from Council websites in HV 10 Key informants from Policy sections of state government agencies responsible for tourism, planning and local government and 3 GMs of Hunter Councils FG1 Event operators. FG2 Newcastle events group. FG3 HV Local government staff responsible for events

Clarifies policy and procedures Insight into the translation of policy into actions Clarifies historical context, motives, goals and expectations Triangulates other data

Document analysis Document analysis Qualitative content analysis generate themes and patterns of what has been said

Allows comparison between words and deeds What is said and not said Supports interpretative inquiry and provides rich data for thick descriptions and theory development


RQ3. Why does the town planners experience uncertainty in decision making for events?


Data Collection will be qualitative.

Documents Government Websites Event assessment reports from Council websites in HV. • Structured Interviews Key informants from Policy sections of state government agencies responsible for tourism, planning and local government and General Managers of Hunter Councils. • Focus Groups Event operators commercial and community Newcastle Council events group. Hunter Region Local government staff responsible for events • Semi Structured Interviews local government town planners


The Analysis of the data will be

undertaken several ways. A situational analysis : to identify the indicative guiding questions for

the Key informants and focus groups such as:

• What is the problem?

• Why is there a problem?

What are the probable causes of the problem?

How serious is the problem?

• Who are affected by the problem?

How many are they?

Where are they located?

What are their characteristics?

• What has been done to solve the problem?


More Data Analysis

Review all Documents – Electronic and printed - using qualitative

content analysis.

Review of interviews using thematic analysis to identify, analyse

and report patterned responses (themes) within data and interpret

various aspects of decision-making.

Quality Controls

• Careful transcription and checking with respondents.

• Avoidance of ‘anecdotal’ approach.

• Triangulation of data.

• Themes analysed not just described.

• Themes are coherent, consistent and distinctive.


The research will advance theory building

and contribute to the knowledge base

• Limited knowledge of how town planners make land use decisions for events.

• Event assessment has not been examined in this way.

• Recent legislative change which needs a systematic analysis.


Thank You

Any questions?



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