IMPROVING THE NSW PLANNING SYSTEM - THE ARCHITECTS RESPONSE

Michael Neustein Urban Planner and Architect
Neustein Urban

Whenever architects congregate, discussion drifts to the role of local government and inevitable complaints about design meddling and delays. Everyone has their favourite/worst council story to tell. Delay is a common thread through most stories. Delay is also said to be the most frequent complaint made to NSW government departments and authorities in respect of local government. The discussion paper released by NSW Planning Minister, Frank Sartor, in early December 2007 details changes to the planning system in NSW which are designed principally to reduce delays.

I often hear architects say that their work would be much easier if only planning controls were mathematically definitive and objectives were explicit. Then, they say, there would be no arguments with clients or councils about exceeding standards. Projects would be required to comply, full stop. Ironically, discussions usually end with descriptions of particular projects, noting how well justified were their departures from the relevant planning controls.
These comments are neither unexpected nor, despite apparent internal contradictions, unreasonable. In respect of residential development, architects probably do no more than 10% of applications - usually the more difficult or adventurous. It would be entirely unreasonable for the community to expect any set of planning controls, no matter how well drafted, to apply to more than 85% of cases. If so, my architect friends are justified in describing how difficult it is to convince council planners that a particular project falls within the 15% of applications which do not fit neatly into the planning controls, and do not comply strictly with numerical standards, but which nevertheless meet the planning objectives.

Quickening the pace of development approval

NSW local government authorities process about 120,000 DAs per annum. With a comparable population, Victoria processes only 70,000 DAs. Analysis by the NSW Department of Planning reveals that 80% of DAs are for houses or house alterations. The Minister has set a target reduction in the total number of DAs to 50% within the next four years. That reduction will be concentrated in DAs for new houses or for alterations and additions. By freeing up the planning resources now devoted to houses, the Minister hopes to improve the processing times for all other types of DA.

The means by which this reduction in processing times is to be achieved is relatively straight forward: make most house applications “Complying Development”. As defined by the NSW Environmental Planning and Assessment Act, “Complying Development” meets specified standards for which a development approval may be issued by a Principal Certifying Authority (PCA) - often a private sector certifier - within seven days. Notification of neighbours is not required, but the development approval (not the application) must be lodged with the local council. Currently, Complying Development is limited to such items as rear ground floor decks, fences and swimming pools. Extending Complying Development to include houses and house alterations in inner and middle ring suburbs will require a new State Environmental Planning Policy or code.

It will come as no surprise to learn that local government is less than thrilled with this and other proposals contained in Minister Sartor’s discussion paper. What’s their problem? The problem is power; power to make all decisions, power to intervene in neighbourhood cross-boundary disputes, and power to refuse DAs when enough objectors emerge. Nowhere has this insatiable need for power been better illustrated than at a session of the Planning Institute of Australia conference in Hobart about two years ago. The then Vice President of the Australian Local Government Association declared that councils reserved for themselves the right to determine any DA, no matter how inconsequential, and certainly any applications for additions to houses. It is this determination to make many technical assessment decisions on a purely political basis, regardless of whether a DA complies with policies. This slows much of the planning system in NSW.
Defying local government authorities, Minister Sartor has framed changes to the approvals system designed to remove 50% of applications from their grasp.

Mandatory default code for NSW

While welcoming proposals promising to speed the DA process, the RAIA is concerned that speed should not be bought at the expense of design quality and sustainability. The idea of a set of rules applying across the state, with numerical parameters responsive to the various conditions of topography, house typologies and area character, is not new. In 2004, the then Urban Design Advisory Committee to the Premier of NSW prepared a report advocating this approach. In a publication approved by the State Government and with a set launch date, UDAC recommended a state-wide code under which a limited number of essential controls should be applied, with flexibility to cater for different circumstances across the state. However, on the weekend before the launch, Premier Carr resigned unexpectedly and the printed reports were consigned to a burial plot beneath a desk at the NSW Department of Planning – where they probably remain.
Adoption of the “mandatory default code” could be similar to the Victorian system where provisions of the “ResCode” are embedded in all local plans.
Industrial development within industrial zones and minor commercial and retail works would also be subject to the mandatory default code.

The design outcomes of such a code, referred to in the discussion paper as a “mandatory default code”, would depend entirely on the numerical controls and performance criteria adopted. No detail of the content of this code has been published, but some of the comments made by Department of Planning officials are cause for concern. At the NSW Chapter’s recent information evening, the Department’s Chris Johnson noted that the outline of the building envelope could be assumed from an analysis of the key characteristics of project homes. This conjured up visions of standard project homes proliferating throughout Sydney’s suburbs, even in the inner ring suburbs.
The mandatory default code (hopefully with a more catchy name) would be prepared by the Department, assisted by an expert panel, and with input from local communities and councils to ensure the outcomes achieve the desired future character for their areas. Local communities could vary the code subject to approval from the expert panel.
Minor departures in DAs from the adopted code or its local variants would be allowed, subject to the local council’s either agreeing to the variations, or agreeing subject to conditions. If a DA deviated significantly from the code, the application would require a merit assessment before following the normal path through council.

Heritage areas

Heritage areas are treated ambiguously in the discussion paper. Although the discussion paper does not state that heritage areas will be exempt, it suggests only internal alterations will be permitted under the code. Department of Planning officials have suggested the mandatory default code permitting houses will apply even in sensitive conservation areas. The RAIA is particularly concerned about this aspect of the Minister’s proposals.
Another related matter of concern to the RAIA is unregulated local government extensions of designated conservation areas. There is a feeling amongst architects that anti-development councils have extended local heritage conservation zones in order to restrict new development. Perhaps a review by the Heritage Council of NSW would be a way of keeping councils honest while ensuring the robustness of designated heritage conservation areas.

Certifier problems

We can be sure that the mandatory default code proposal as a whole will be rejected by local government holus bolus. A friend - general manager of an inner metropolitan municipality - asked me how his council would regulate a massive expansion of Complying Development. “We already have enough trouble with PCAs from the private sector. How will we ensure that what they have certified is built as approved? What will we do when Complying Development exceeds its standards during construction – order its demolition?” He believes that a few well publicised cases in which development is ordered to be demolished will be necessary to ensure Complying Development approvals are followed without unauthorised changes. This will necessitate a change of heart by the Land and Environment Court, which is very reluctant to order demolition except in the most extreme circumstances.

Incorporation of performance or objective based requirements in a mandatory default code could give rise to the need for certifiers to approve design aspects of applications, especially matters such as streetscape compatibility. Certifiers have proved very uncomfortable with subjective aspects of approvals and the extension of such matters to certification will remain of concern to the RAIA and all architects.

Notification

Notification of Complying Development may also become a battleground with local government. Under the discussion paper proposal, there would be an “obligation” for the certifier to notify neighbours of a Complying Development proposal. No right of appeal or objection is proposed. Instead, the Department would encourage councils to advise all residents purchasing homes in an area, that Complying Development of specified characteristics may be built on adjoining sites as a matter of right and without notification.
Over the past two decades, the NSW Land and Environment Court has focused on notification as a key element of development consent. Failure to correctly notify has invalidated consents granted to prominent developments. A major shift in community expectations will be required for this aspect of the proposal to be accepted.

Plan making

The Minister’s targets for plan making improvements are a reduction of 50% in the numbers of SEPPs and REPs and a reduction of 50% in the time required to process LEPs.
Plan making, an area in which architects are much less involved, has proven troublesome to administer. When the EPA Act was first proclaimed in 1980, the philosophy behind the Act was based on a periodic review of new plans called Local Environmental Plans, about once every five years. Back in 1995, 15 years into the Act’s life, there were still some municipalities which had not completed an initial conversion to the new plan type, let alone a review. For the first time, the discussion paper proposes a strict timetable for the rezoning process.
The discussion paper carries an implicit criticism of spot rezonings, seeing such applications as disruptive of the orderly process of plan making. Spot rezonings should be welcomed as opportunistic interventions in the development of communities and, where warranted, should be the subject of a speedier process of approval.
Under the Minister’s proposals, all rezonings will be screened and then directed into various process streams, depending on the significance of their content. Small changes to permitted uses for individual sites might even be delegated to local government. Major rezoning proposals would be vetted by a Planning Assessment Commission or Joint Regional Planning Panels. The Minister also proposes to rationalise and speed up the process of getting other government departments to sign off on LEPs or amendments. (Good luck to him on that one – my experience is that no state department is speedy, not even his own.)

Development assessment

For some years, the Development Assessment Forum (DAF) has recommended separating the plan preparation power from the development assessment power in local government. DAF, a body representing all state planning departments, the Commonwealth, local government and industry bodies, believes that DA assessment should not provide opportunities to revisit the basis for planning controls. To remove development assessment from the political arena, DAF has advocated the model of independent panels now operating in South Australia. Under the SA model, the majority of panel members are independent of the council. The panel makes the planning decisions, not the council. The council’s role is plan formulation, not assessment.
The discussion paper recommends the creation of totally independent panels without decision making powers. Such panels have proved very useful for the few metropolitan councils which have set them up voluntarily. Under a voluntary scheme, the council has an obligation to follow the panel’s recommendations under threat of a panel walk-out. Under a compulsory panel scheme, a council could choose to ignore the panel’s comments, risking only the wrath of the Minister.

Appeals

Lawyers practising in the Land and Environment Court jurisdiction will not be cheered by the news of further ways to reduce appeals to the Court. Small applications will require independent planning arbitration before being able to be appealed. This seems a good step, but the need for an appeal following arbitration seems unnecessary. No appeals are to be available for refusal of a Complying Development certificate.
s96 applications to amend development consents
Modification of development consents has been a vexed area for some time. From the local government viewpoint, s96 applications have proved to be an inappropriate means for developers to claw back sections of project excised during the approval process. For developers, s96 applications have become imperative as private certifiers, particularly, have interpreted the Act as prohibiting even very minor construction changes without council approval. The community has become very aware of the need to watch s96 applications very carefully to ensure unacceptable project creep does not adversely impact on the locality.
The discussion paper solution is to cap the number of s96 applications which can be made – perhaps five for small developments and ten for larger projects. This may be counterproductive unless certifiers are given more latitude to deal with minor or construction changes, possibly outside s96 altogether. Rather than restricting such amendments, the fees for lodging significant changes should be increased substantially, forcing applicants to consider changes more carefully.
Applying SEPP 1 to s96 applications, as recommended in the discussion paper, may make the justification hurdle higher. It is worth doing only if the amendment to a consent represents a greater than, say, 5% exceedance of a specific numerical planning control.

Other improvements

Many other process improvements are proposed, including a standard web portal for local government. This would allow access to all planning information, DA tracking systems for all councils, certification by corporations and e-planning DA lodgements. Missing from the strata title changes is any mention of a better way of dealing with dissolution of strata plans for obsolete buildings.
The Minister’s insistence on there being a single DCP to apply to every allotment is unchanged, encouraging the repackaging of bundles of DCPs into single, multi-chapter volumes of 600+ pages. It’s hard to understand how this requirement works to facilitate planning.
No mention is made of making DCPs slimmer by focusing on essential controls and removing the plethora of textbook material imported into bloated planning documents.

How will the improvements affect the practice of architecture?

Most small practices design houses: new ones and alterations and additions. In many cases, their designs are likely to fall outside the mandatory default code or its local variants, putting architects back where they are now, shepherding DAs through the council controlled merit assessment process. Reducing DA numbers should quickly result in councils having greater planning resources available to report on normal DAs, thereby speeding up reporting times. IHAPs, compulsory or otherwise, may reduce the politicisation of DAs, again speeding up applications.
Many architects may be asked to join one of the various panels created under the new system. Unfortunately, too few will work within local government to advise in favour of better design outcomes or increased sustainability.
All the web-based information systems will, as they have already, facilitate the flow of information necessary under the NSW planning system.
Will we get better design outcomes? Only if the design quality approach introduced under SEPP 65 is extended beyond apartment buildings to all types of projects. And only if the Department of Planning reintroduces a unit whose sole task is to advise on how to achieve better design outcomes. It’s all up to Minister Sartor.
To be frank, we have needed a Planning Minister with muscle for some time; let’s hope Sartor’s our man.



Improving the NSW Planning System – Discussion Paper, NSW Department of Planning, November 2007, Sydney
Achieving Better Design – Detached Dwelling Houses in NSW, Urban Design Advisory Committee for the Premier of NSW, November 2004, Sydney