Facilitating spot rezonings

24 August 2011

In August 2009 the NSW Department of Planning released a practice note to explain how requests may be made to the Minister to facilitate a rezoning.


The practice note was released as a response to a long-running push by the Urban Taskforce for a proper review process when local councils unreasonably block rezonings.


The practice note fell well short of what we sought, and we continue to seek a better system.


As the practice note explained, under legislation that commenced on 1 July 2009, it is possible to approach the state government directly for a rezoning (outside of the Part 3A/state significant development process).


The 2009 practice note provides examples of situations where the government might decide to take control of a rezoning. Two of the examples are of particular interest to developers.


Firstly, the state government may intervene if the proposed rezoning is of strategic importance because of:

  • its location and major contribution to regional development (as identified in a State or regional strategy);
  • its importance to a particular industry sector for employment or infrastructure service delivery; or
  • its redevelopment potential to achieve government policy goals.


Alternatively, the state government may take over a rezoning process if a council has either:

  • failed to give reasonable consideration to a planning proposal provided to a council; or
  • delayed unreasonably the consideration of a planning proposal commenced by the council.


Under the practice note, a request for a rezoning needs to be made to a local council. If that process is unsatisfactory, requests can then be made to the regional office of the NSW Department of Planning for the Minister to facilitate a rezoning.


A key provision in the 2009 legislation, as explained in the practice note, was the ability of the Planning Assessment Commission or a joint regional planning panel to recommend that the Minister facilitate the preparation of a LEP.  The Minister could this by appointing someone, other than the local council, as the body responsible for submitting a “planning proposal” or a “gateway determination”.


There has not been a strong response to industry to this practice note for three reasons:

  • a Part 3A concept plan approval provided a more reliable pathway with less risk;
  • there were problems with the wording of the legislation which made it difficult for the Planning Assessment Commission or the joint regional planning panels to make a recommendation, as originally envisaged; and
  • it has been unclear whether government is politically prepared to routinely strip councils of the power to initiate rezonings on a project-by-project basis.


In relation to the first point, for most residential, retail or commercial development Part 3A is no longer an option. For the moment, where a council is hostile or unresponsive to a spot rezoning request, this leaves either the ministerial call-in provisions under the new state significant development stream OR the process outlined in the August 2009 practice note.


In relation to the second point above, a provision included in the recent Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 tidied up section 54 of the planning law to address this legislative problem. The legislation, once the amendment is proclaimed, will allow the Minister to appoint someone other than the council (e.g. the Department) to prepare a planning proposal, based on a recommendation by the Commission or a panel that the rezoning should proceed to the next stage (i.e. consideration for a gateway determination).


In relation to the third point, it is still very much an open question, whether government is politically prepared to routinely intervene on a project-by-project basis and appoint, say, the Department of Planning and Infrastructure to submit planning proposals for gateway determinations in the place of local councils.


We are continuing to argue for a stronger rezoning appeal right for proponents – one that is not dependant on routine ministerial intervention. The existing August 2009 practice note is here.