20 June 2011
The Government has introduced legislation that repeals Part 3A from the statute books.
Transitional arrangements
The legislation repeals Part 3A, but it allows the former Part 3A provisions to continue for transitional Part 3A projects. In general terms, these reflect previously announced arrangements. Some problems identified by the Urban Taskforce with the transitional arrangements (announced in May) for some pending Part 3A projects have been addressed by the bill.
New state significant development stream
A new assessment pathway for state significant development is established within Part 4 of the Act. As a general rule, commercial, retail and residential development (of any size) will not be regarded as state significant development, although there is a theoretical possibility of a site being declared state significant in the future (some existing state significant sites have been carried over, inclduing Barangaroo, the Frasers CUB site, the Bays Precinct and Warnervale Town Centre.) There is also a ministerial call-in process (see below).
The main focus of the new state significant development stream will be mining projects, heavy industry generally and large-scale industrial, distribution and warehousing. (The threshold for large warehouse and distribution centres will be raised from $30 million to $50 million and marinas will also be removed from the state significant development category.)
For these projects the legislation assigns the consent role to the Minister for Planning and Infrastructure. As a matter of policy private sector projects (which the government thinks will account for 80 per cent of state significant projects) will be delegated down to the Planning Assessment Commission for decision.
A new SEPP will formally establish the categories of state and regionally significant development (more details are here). There will, apparently, be a 50 per cent reduction in the numbers of matters that are considered state significant development.
Under the state significant development stream the Minister or Planning Assessment Commission will not be able to grant consent to development that is wholly prohibited by an environmental planning instrument, but consent for partly prohibited development may be granted.
In order to pursue development that is wholly prohibited in a zone, land will either need to be rezoned first, or a rezoning request and development application will need to be pursued concurrently.
All state significant development even warehouses or distribution centres will require an environmental impact statement. Previously this requirement was generally limited to heavy industry.
Also, the Part 3A provisions that remove the need for separate approvals under eight other acts of parliament have been re-created in relation to Part 4 state significant development (but these provisions will not apply to residential, retail or commercial development dealt with by joint regional planning panels).
It will now be more difficult for state significant development applications to be approved when they do not strictly comply with the development standards laid down in environmental planning instruments. Under Part 3A, there was an ability to depart from standards based on the merits of the case, but now any departure would need to satisfy the more limited requirements of SEPP 1 (e.g. that a strict application of standards in a particular case would be unreasonable or unnecessary).
In one minor concession, following representations from the Urban Taskforce, the government has announced that the new State and Regional Development SEPP will include a provision to exclude the application of council development control plans to state significant development. The Minister, Brad Hazzard, has told Parliament that development control plans are typically not prepared with major complex classes of development in mind.
Ministerial call-in process
The bill also provides a reserve power for the Minister for Planning and Infrastructure to call in a proposal that is not listed in the proposed SEPP following publicly available advice from the Planning Assessment Commission (PAC). This reserve power ensures that genuinely State significant proposals which are not captured by the SEPP can be assessed and determined at the appropriate level.
The legislation itself does not contain much detail on how this process will work, but the government has published a policy statement with further information.
The process allows an applicant to submit a written request to the Minister for the proposed development to be called in as state significant development, and the request may be referred to the Planning Assessment Commission for advice.
There are several factors nominated as relevant considerations when deciding where a project should be called-in. These include:
- significant public benefits for the state or regional communities, including those that directly relate to actions and goals in State or regional strategies and plans;
- when the development is a precinct-scale project that crosses over multiple local government areas and requires coordinated assessment.
More detail on this process is set out in the governments policy statement here.
Planning Assessment Commission
The Government appears to be acting on two recommendations made by the Independent Commission Against Commission (ICAC) last year regarding the Planning Assessment Commission. No-one will be able to be a member of the Commission for more than six years and some (or all) members may now be appointed on a full-time basis.
However, the government has not (yet) acted on the ICACs recommendation that the Planning Minister should not have the power to appoint and dismiss members of the Planning Assessment Commission without parliamentary or other independent scrutiny. The legislation also ignores ICACs recommendation that the Commission should be given quasi judicial status (i.e. greater independence from the Department and Minister).
The Minister has, however, said that there will be new operational procedures and protocols which outline how the Commission will undertake its day to day functions in a more open and transparent way.
Rezoning process
A minor extension to the Planning Assessment Commissions powers will allow it to recommend that a planning proposal be submitted to the Minister for a gateway determination.
The Minister, Mr Hazzard, says that This will enable rezoning proposals that have planning merit or are consistent with local, sub regional and regional planning strategies to be progressed even if a local council is unwilling, or does not have the resources to pursue the rezoning at the time.
In such a case the Minister can make the Director-General of the Department of Planning and Infrastructure the relevant planning authority for the planning proposal to carry it forward.
However, the only clear mechanism to bring a matter to the attention of the Planning Assessment Commission is if it falls into a state or regionally significant category, or a case is made to the Commission for the exercise of the reserve ministerial call-in power (on the grounds of state or regional significance).
Next steps
The bill is very likely to pass quickly through parliament without significant amendment. A date for the bills commencement is not yet known.
Further information
The speech by the Planning Minister, Brad Hazzard, on the bills introduction to the Parliament last week is available here.
A Department of Planning and Infrastructure fact sheet is available here.
A policy statement setting out the planned categories of state and regional development under the new state significant development stream is available here.
A policy statement detailing the procedures for state significant development is here.
A policy statement on the reserve power call-in process for state significant development is here.
The bill itself is available here.
