Governance and master planning in the NSW planning system

Transcription

1 Governance and master planning in the NSW planning system 27 August 2014 Lecture University of NSW Built Environment Alice Spizzo Director, Planning & Environment Ref: NSW Department of Planning & Infrastructure Community guide: Draft Metropolitan Strategy for Sydney to

2 What will we cover? Background to master planning Master planning in the context of planning and development in NSW Legislative provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) What the courts have said about master planning Development Control Plans The importance of governance 2

3 What is master planning? A strategic framework An overall vision for the ultimate outcome of a particular project Applies to both greenfields (Growth Centres) and brownfields (City West) Creates a comprehensive urban design plan for projects large and small A map Planning for infrastructure and services Development control 3

4 Where does master planning sit in the NSW planning system? Big picture (Metro) Regional and local planning DCPs and staged approvals (how should it be done and under what conditions) 4

5 EPIs and DCPs Environmental planning instruments (EPIs) Legally binding land use planning (SEPPs & LEPs) Development Control Plans (DCPs) Development detail Deal with particular aspects of EPIs in more detail Prepared by Relevant Planning Authority Non binding, but must be taken into account by a consent authority when considering a development application: A provision... directly pertinent to the application for consent before the Council... was entitled to significant weight in the decision making process but was not, of course, determinative (Zhang v Canterbury City Council [2001] NSWCA 167 per Spigelman CJ) 5

6 Environmental Planning and Assessment Act BA Purpose and status of development control plans (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development: a) giving effect to the aims of any environmental planning instrument that applies to the development, b) development that is permissible under any such instrument, c) achieving the objectives of land zones under any such instrument The provisions of a development control plan made for that purpose are not statutory requirements. 6

7 Master planning in the NSW context Prior to 2005, master plans could be required in addition to DCPs and DAs EPIs could require a master plan prior to a DA being considered or lodged University of NSW A means to gain in-principle agreement for projects particularly in brownfields Used by councils and the Department to plan for local areas and specific sites Amendments to the EP&A Act in 2005 master plans no longer applied as a separate process to DCPs or DAs 7

8 The 2005 amendments why change was necessary Master plans = broad strategic outline for the development of large or significant sites building envelope and setbacks etc. But, over time, used by planning authorities for detailed design guidelines for development of a site, like a DCP or staged DA Increasing amounts of detail was required in master plan applications resulting in duplication, layers and increased cost 8

9 The 2005 amendments changes made 16 June 2006: NSW Parliament assented to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning reform) Act 2005 In relation to master planning: Removal of the need for master plans by: Widening scope of DCPs and allowing DAs to be lodged where no action on a DCP (ss 74C, 74D) Allowing staged DAs as alternatives where DCPs required by EPIs (s 83C) Transitional provisions allowing MPs to become DCPs 9

10 What the courts have said There has been little judicial consideration of the amended master planning provisions Both forms of master planning provisions were applied in S J Connelly CPP Pty Limited v Byron Bay Council [2010] NSWLEC 1182, a case involving an appeal against a council s refusal of a staged DA Regarding master plans, the [EP&A Act as amended] enables the master plan requirement to be construed as requiring a development control plan. Accordingly, an appropriate master plan would satisfy the requirements of the [relevant LEP]. (at [35]) Section 83C deals with staged development applications as an alternative to the DCP required by environmental planning instruments... As a consequence of this staged development application for the subdivision of this land, the applicant has prepared a concept plan (CP) to address the requirements of cl 83C(2) and (3). This CP addresses the matters listed in cl 20 of SEPP 71, and is an approach I consider satisfactory. (at [39]-[41]) 10

11 Master planning today Essentially, carried out through site-specific or staged DAs An EPI may require a DCP to be prepared for a site before development may be carried out However owners may submit a DA where council refuses to make a DCP or delays in making it by more than 60 days The provision of appeal rights 11

12 Master planning and DCPs Planning for outcomes Governance Striking a balance Reality checks Examples of master planning in a DCP 12

13 Site amalgamation Achieve development potential of land Efficient access arrangements Efficient building envelopes Mixed use or commercial Site, size and frontage controls 13

14 Ref: Canterbury DCP

15 How do you make it happen? Planning principles for site amalgamation Independent valuation of adjoining land Offer = valuation + incentive + reasonable costs Demonstrate you have made an offer and negotiated 15

16 Master planning and fragmented land ownership Rezoning greenfields Structure plans Revitalising town centres Reality check 16

17 Ref: Ku-ring-gai Local Centres DCP 17

18 Setbacks, cycleways and dedication of land City of Sydney shared pedestrian/cycleway Condition of consent public domain plan to be submitted to council prior to CC. Also the particular street footway identified in cycle strategy shared cycleway 18

19 Governance Development Contribution or condition of consent Can t ask for dedication of land unless in s 94 plan + deducted from contribution Not in s 94 plan VPA Dedication requirement not a result of the DA but Council policy/strategy Roadworks part of DA = condition 19

20 Planning principle: Conflict between development and master plan In Aldi Foods Pty Limited v Holroyd City Council [2004] NSW LEC 253 The question arose as to what planning principles the Court should apply to assessing a proposal, which is a permissible use, but which is antipathetic to the urban structure and built form envisaged in a master plan 20

21 Planning Principle: Conflict between development and master plan The quality of the master plan. Is it based on sound planning and urban design principles? Will it lead to a better outcome for the environment and the local community? The public exposure that the master plan has received. Have the relevant landowners, stakeholders and the wider community been consulted? The time frame for and likelihood of implementing the master plan. How long will implementation take? Is it likely that it can be implemented? The impact of the master plan on the development potential of the site. Does the master plan unreasonably delay the development of the site? The extent of inconsistency between the proposal and the master plan. Would approval of the proposal frustrate the implementation of the master plan? 21

22 The importance of governance Changes were required to improve governance and procedural fairness From a legal perspective, the requirement for master plans as a precondition without checks and balances, and appeal rights was problematic From a policy perspective, the requirement for master plans resulted in duplication and added complexity and cost to the development process The process of master planning is integral to good planning outcomes but should ensure proper governance and transparency in the context of the EP&A Act 22

23 Questions and Discussion 23