NSW Planning, Environment & Government Update - April 2009

Contents

• Spot rezonings are back!
  Anthony Whealy, Partner in charge of our planning, environment and government group, had an opportunity last week to ask Planning Minister Kristina Keneally whether and when the Department will once again assist developers by accepting site-specific rezoning proposals. The Minister's answer: "The Department is once again very open to spot rezonings. Bring them forward, and spread the word" (discussed in our July 2006 update - click here to read)

• New state planning policy set to encourage retail and commercial development
  A new state government planning policy released for exhibition recently aims to encourage retail and commercial development - notwithstanding economic impacts between retail competitors - reflecting the vital role the sector plays in both state and local economies(discussed in our November 2008 update - click here to read).

• Planning reform update
  All the latest news on the NSW Government's extensive planning reform package, including the expected timing for the remaining reforms to commence (discussed in our November 2008 update - click here to read).

Spot rezonings are back!

As many readers will recall, in early 2006 the NSW Government effectively announced a moratorium on site-specific rezonings (as discussed in our July 2006 update click here). Since that time, this has meant that landowners and developers who wished to rezone their land were generally prevented from doing so, other than as part of a council's broader plan-making within its local government area – a process which typically takes approximately five years.

A key element of the NSW Government's planning reform package passed in June last year was the introduction of a "gateway" system for rezoning, which promised a quick, up-front decision on whether a rezoning should proceed, in order to avoid wasteful delays (as discussed in our planning reform updates below). However, it was never quite clear whether the intention was for this new system to be available for site-specific rezonings. The gateway system has not yet commenced (see below for latest timing expectations), but in meetings with staff at the Department of Planning over the past six months, gadens lawyers found departmental staff to be entirely unwilling to consider spot rezonings. The usual departmental response was that developers should talk to their local council as the Department had its hands full.

However, Anthony Whealy had an opportunity this week to ask Planning Minister Kristina Keneally whether and when the Department will once again assist developers by accepting site-specific rezoning proposals. The Minister's answer: "The Department is once again very open to spot rezonings. Bring them forward, and spread the word". The Minister acknowledged that this approach sharply differs from the Department's practice over the past few years, but emphasised that the Department is eager to facilitate and to encourage appropriate development and investment in the property sector. She recognised that this cannot wait for larger strategic planning across broad local government areas. If a site is suitable for rezoning, it should now be assessed on its own merits, in a timely manner.

gadens lawyers are happy to "spread the word". We would recommend that landowners who are interested in seeking spot rezoning approvals obtain early strategic advice and arrange for preliminary discussions with the Department/Minister as early as possible – and before the Department is inundated with applications! gadens lawyers are available to assist with this process if required.

by Anthony Whealy

Retail and commercial development – the engine room

A new state government planning policy aims to encourage retail and commercial development, reflecting the vital role the sector plays in both state and local economies.

The Draft Centres Policy released by the Department of Planning on 10 April 2009 sets out a broad planning policy framework for retail and commercial development.

The draft policy clarifies the role of local government in town planning for retail and commercial development. The message is to let market forces determine the need for retail and commercial developments. The role of local councils is to identify the location of local retail and commercial centres through the zoning process, rather than through knee-jerk reactions to individual development applications.

Assess development applications on merit – not impact on competition

When councils assess individual development applications for retail and commercial development they often make the mistake of considering the impact of a new retail development on other businesses in the area, in terms of potential loss of business profits. According to the draft policy, this should be left to the market to determine.

Where a development proposal complies with the permitted uses in a zone, a council's assessment should be limited to the merit assessment process under section 79C of the Environmental Planning and Assessment Act 1979. It should not take into consideration the likely competition impact of a new entrant on any existing retail and commercial premises and should not favour one particular form of retail over another.

Where a development proposal is inconsistent with the currently-permitted use in a zone (i.e. where it is prohibited and requires a rezoning), a Net Community Benefit Test will apply. The test is to be undertaken by a proponent and endorsed by the council prior to being submitting to the Department of Planning as part of the new Gateway rezoning process (discussed above).

Regional planning

The draft policy confirms that the regional and sub-regional strategy 'centres categories' are to be used as descriptive tools only. The typologies of centres are not to be employed by councils as a tool to oppose a particular retail or commercial development proposal or to restrict the expansion and growth of a centre.

The Draft Centres Policy is open for public comment until 11 May 2009.

click here to read the Draft Centres Policy.

By Jodie Wauchope

Planning reform update

On Thursday 9 April 2009, gadens lawyers attended a special address by Planning Minister Kristina Keneally, in which the Minster shed light on the expected timing for the commencement of the remaining planning reforms.

For general information on the reforms, see our previous updates located in the publications area of our website by clicking here

The Minister confirmed the following dates/timelines:

• the new Gateway process for rezoning applications will commence by 1 July 2009, but possibly by early June

• in relation to major project assessment, the Planning Assessment Commission (PAC) has already been formed and had advised the Minister on nine projects

• in relation to development application assessment (for most DAs worth more than $10 Million), the Joint Regional Planning Panels are to commence in July 2009

• interestingly, the system of independent planning arbitrators for small-scale development applications is now being reconsidered and may not proceed. The Department of Planning is in discussions with the Land and Environment Court regarding how the role of independent planning arbitrators could be integrated into the Court's merits review system.

In relation to SEPP (Exempt and Complying Development Codes) 2008:

• stage 2 – a code allowing fast-tracked internal approvals for retail, commercial and industrial developments will be released by July 2009

• stage 3 – a code allowing fast-tracked approvals for housing lots under 450sqm, attached housing and rural lots would occur by late 2009

• stage 4 – a code allowing fast-tracked external approvals for retail, commercial and industrial developments would occur by early 2010.

We will keep you informed as these further developments unfold.

By Anthony Whealy

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.