10 August 2011
The Land and Environment Court has declared that the Ku-ring-gai Local Environmental Plan (Town Centres) 2010 published in May 2010 has no legal force or effect. This means that the Ku-ring-gai Planning Scheme Ordinance is still in place.
The town centres plan was intended to deliver around 4,500 new dwellings over the next 20 years within the Ku-ring-gai town centres. In simple terms, the LEP was invalidated because the final plan published by the then Planning Minister, Tony Kelly, differed in material respects from the version that was publicly exhibited.
Most of the changes that tainted the process were made by the Ku-ring-gai Planning Panel, based on the advice of Ku-ring-gai Council officers. These changes related to things such as the controls on school sites and electricity substations, changes to biodiversity controls that extended the application of the exempt and complying development codes and the reduction in the size of a proposed heritage conservation area.
Only one change was the subject of an explicit ministerial decision. This related to the “Masada triangle site” which was upgraded from an “R2” low density residential zoning, to an “R4” high density zoning.
These changes breached a long-standing rule that limit the amendments that can be made to a draft planning instrument, in the absence of a re-exhibition. While it is perfectly normal to amend proposed planning instruments in between public exhibition and finalisation, amendments that mean the difference between the exhibited draft and the final version is “stark” and “significant” may invalidate the final plan.
This case, assuming it is not over-turned on appeal, highlights three issues.
Firstly, there are grave problems with entrusting matters of high planning significance to council officers (in this case, advising the Ku-ring-gai Planning Panel) when the council itself has no real commitment to the work program. If the council had supported the work of the planning panel, it might have, for example, allocated resources to obtain high quality legal advice to ensure that the work of its officers would not be the cause of a successful legal challenge. Instead, council officers were forced to muddle on through without that kind of expert assistance and, unwittingly, sowed the seeds of the plan’s destruction. A panel composed of part-time members, paid a modest honorarium for their work, is no safeguard from the legal errors that council officers can unwittingly introduce into a complex planning process.
Secondly, even the Department of Planning seemed to be ignorant of the need to ensure that the final plan was not starkly and significantly different from the exhibited plan. This is, of course, just the latest in a succession of successful legal actions against the Department of Planning. This surely must be a wake-up call that the Department needs to dramatically improve its ability to assess and manage legal risks.
Thirdly, many changes were made to the Ku-ring-gai Town Centres LEP between exhibition and finalisation, but the Court focused on the changes that increased, rather than decreased, the development potential of land. The message that the Department and councils will probably take from this decision, is that once a document is exhibited, any changes should not significantly increase development potential. From a developer’s point of view, this means we must insist that exhibited drafts include provision for everything that is required, and not rely on assurance that matters can be tidied up in a post-exhibition process.
This case adds to concerns about the sanctity of zoning in NSW, particularly in relation to any recently finalised zoning plan. If this decision stands – it will mean that, since May 2010, both the NSW Government (through its legislation website) and Ku-ring-gai Council (through its website and section 149 planning certificates) have wrongly represented the true development potential of land in the Ku-ring-gai town centres. We wait with interest to see what, if any, legal action is taken by people who have acted in reliance on these representations. If you’re such a person, the Urban Taskforce would be keen to know about any proceedings you commence (please contact us).
It should be noted that this litigation related to provisions in the Environmental Planning and Assessment Act that were repealed when the “gateway” process was introduced for new rezonings from July 2009. One of the main differences between the old and the new requirements, is that public exhibition under the new requirements is only mandatory if it is required under the “gateway determination” issued by the Department of Planning and Infrastructure for each project.
The full judgment by the Land and Environment Court is available here.