Environmental Planning And Assessment Amendment Bill
|About this Item||Speakers||Knowles Mr Craig
||Business||Bill, First Reading, Second Reading
ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT BILL
Bill introduced and read a first time.
Mr KNOWLES (Moorebank - Minister for Urban Affairs and Planning, and Minister for Housing) [10.05]: I move:
The proposed bill contains a package of amendments to the Environmental Planning and Assessment Act. The amendments to clarify some aspects of the Act remove various difficulties that have been identified with its operation, and streamline its operation, thereby increasing its efficiency. I would like now to briefly outline and explain the amendments. The first group of amendments is to clarify aspects of the operation of the Act. The amendments in schedule 1 add certainty and clarity to the role of the Minister and, where appropriate, the director-general in the plan-making process. The decision of the Court of Appeal in the legal challenge to the greater metropolitan regional environmental plan has thrown doubt on the extent to which a draft instrument may be altered without re-exhibition.
Limiting changes to those that are minor and non-material does not fulfil the original intention of the Act, and almost makes a nonsense of the exhibition process. The amendments clarify the power of the Minister or the director-general to undertake changes of substance to exhibited draft regional environmental plans, whether in response to submissions or otherwise. The amendment also clarifies that the existing power of the Minister to alter draft local environmental plans in relation to matters of significance for State or regional environmental planning may comprise alterations that are matters of substance. The amendments will allow greater flexibility in policy development following exhibition. They provide that the Minister or the director-general may, but need not always, require re-exhibition of an altered draft plan. This does not alter the general obligation under the Act to consider re-exhibition of an altered draft plan.
The amendments in schedule 3 concern developer contributions. These amendments allow councils to calculate the contributions for past expenditure in the same way as they would calculate
contributions for future expenditure. The amendments are necessary to remove restrictions on the calculation of contributions for past expenditure, which are restricted to the recoupment of past costs. In the last few years safeguards have been built into the system to ensure that the process of levying developer contributions is transparent and highly accountable. Key features of this process are the public exhibition of developer contribution plans, the need to demonstrate a link between the development and the contribution, and a manual to assist councils. Within this open and accountable process the amendments simplify and make more flexible the levying of contributions by councils. The amendments in schedule 4 clarify the position where an inconsistency arises between planning instruments. A State environmental planning policy or a regional environmental plan which contains a provision that expressly binds other future planning instruments will prevail, unless the contrary intention expressly appears in a later instrument.
The Court of Appeal has held that the current words of section 36 do not permit a planning instrument to bind future instruments. This amendment ensures that State and regional planning controls currently in place will continue to operate effectively. The amendments in schedule 5 clarify the process for the modification of approvals for government projects. The Minister for Urban Affairs and Planning grants an approval for government proposals where these fall within certain criteria set out in division 4, part 5 of the Act. Experience has demonstrated the need to provide a process for a proponent to seek the modification of such an approval. This amendment will enable an approval for a government project to be modified by a process that is clear, streamlined, and yet considers the environmental impacts of the modification of the approval.
The amendments also extend the public consultation requirements to require the proposed modification to an approved activity to be exhibited and public comments taken into consideration in the approval of that modification. The second group of amendments is designed to streamline the operation of the planning system, and result in more efficient practices. The first of these concerns proceedings in the Land and Environment Court. As Minister I must currently give written consent before proceedings are commenced for offences against the Act in the summary jurisdiction of the Land and Environment Court. The amendment in schedule 6 is to remove this consent role, as it is no longer considered appropriate. In practice local councils are the bodies which bring prosecutions and this ministerial role has been removed from the relevant sections of the Local Government Act 1993. Further, the amendment is in keeping with the general trend of giving local government more autonomy and at the same time making councils more accountable, a trend which I wholeheartedly support
The amendment proposed in schedule 7 addresses the issue of the viability of a project being affected when valuable time is lost by separately and sequentially exhibiting and considering a draft plan and a development application, especially one involving an environmental impact statement. As I have said, currently the rezoning of land and lodging a development application concerning the rezoned land must be undertaken sequentially. The amendment in schedule 7 proposes to introduce a new division 4B into part 3 of the Act which will enable these two processes to be undertaken concurrently. Clear power will be provided for a consent authority to jointly advertise and exhibit the draft plan and the development application. The decision as to whether or not to initiate this process of joint exhibition is one solely for the consent authority, as only the consent authority has the power to resolve to prepare a draft local environmental plan. The minimum period for joint exhibition of a draft plan and a development application will be 28 days. This is double the minimum period that applied in May 1994 when, as Opposition spokesman, I opposed a similar proposal by the previous Government on the grounds that it removed some rights for public participation in the planning process.
I am satisfied that as a result of the changes to the Environmental Planning and Assessment Regulation these rights are protected because the minimum period for public exhibition has been doubled to 28 days. In the case of the exhibition of a draft plan and an application for designated development, the exhibition period will be a minimum of 30 days, the minimum for designated development. This amendment results in time and cost savings to all parties without compromising the rights and opportunities for the public to participate. The public will retain the right to have a say in the planning process and in councils' consideration of both the draft plan and the development application. Moreover, the public will gain a fuller picture of the proposal because at present it is often unclear at the rezoning stage exactly what the implications of the rezoning are.
A further objection that I raised last year concerned the use of an environmental impact statement as an environmental study. The amendments that I now propose will maintain the existing distinction between an environmental impact statement prepared on behalf of an applicant and an environmental study prepared by the council. This will meet my concerns that I expressed last year, that the study should be the more objective planning document. The amendment further streamlines the process by giving the Minister the power to direct a single commission of inquiry into both the rezoning and the development proposal, where appropriate. The amendment does not provide the applicant with a right of appeal where a council decides not to proceed with the rezoning. In such a case the application remains prohibited, cannot be approved, and there is no right of appeal. Nor does the
amendment seek to bring into effect the non-operative division 4A of part 3 of the Act relating to applications for the preparation of local environmental plans for residential development. This is prohibited because division 4A of part 3 remains non-operative.
The amendment in schedule 8 enables consent authorities to introduce into planning instruments non-discretionary development standards, also known as "deemed to comply" development standards. The standards can be set out in local environmental plans, State environmental planning policies and regional environmental plans. The purpose of enabling the introduction of these standards is to provide more certainty in the development control system. A development application and a development consent would continue to be required from the consent authority. But where a proposed development complies with this type of development standard, then the consent authority will have no discretion to give further consideration to the development standard, or to refuse an application on grounds related to the standard, or to impose a more stringent standard. But other considerations under section 90 of the Act that do not fall within the scope of the nominated non-discretionary standards will continue to apply. Councils will still have the discretion to attach conditions or refuse consent on those other grounds.
This approach offers councils the opportunity to assess, quickly and effectively, proposed developments that comply with non-discretionary development standards contained in environmental planning instruments. The use of non-discretionary development standards removes a level of uncertainty involved in the development application process. Since the proposal for this amendment was put forward in 1994, the issues of providing for more certainty of planning outcomes and consistency of standards has gained strength at both Commonwealth and State levels. An example is in the approach adopted in Australian model code for residential development, published in November 1995, a resource document for councils to draw upon in planning their areas. AMCORD incorporates a selection of acceptable solutions to achieve the desired planning outcomes chosen by councils. These solutions cover a whole range of environmental and development factors. The use of deemed to comply development standards in planning instruments by councils is an effective way to achieve these acceptable solutions.
Furthermore, this Government has adopted a new approach to planning, particularly in the area of urban consolidation. This new approach gives to councils the opportunity to take responsibility to devise and implement their own local planning policies which contribute to metropolitan objectives. This new approach should pre-empt any council concerns that the Government will seek to unreasonably impose deemed to comply provisions across the board. The Government has already demonstrated good faith in this policy area by honouring its promise to repeal the dual occupancy subdivision provisions from State and regional controls, by repealing State environmental planning policy No. 28 - town houses and villa houses.
The amendment in schedule 10 is put forward to improve the effectiveness of the environmental planning and assessment regulation. It is important to the planning process to be able to refer to a non-statutory document, such as a technical manual, guideline or policy document in the environmental planning and assessment regulation. Such guidelines or policy documents may be updated from time to time to reflect current best practice, but the Act currently requires that the regulation itself must be amended in order to adopt the updated document. The amendment in schedule 10 to the Act will allow such a reference in the regulation to refer to the most recent version of the document. An example of such a non-statutory document reference is the bushfires manual. The amendment increases both efficiency and effectiveness by eliminating the need to update the regulation frequently as documents change.
The amendment in schedule 2 aims to improve and provide more flexibility in the process of preparing an environmental study or a draft regional environmental plan. At present an environmental study must be prepared before a draft regional plan is prepared, and consultation on the study and draft plan must take place sequentially. Both requirements are seen as unnecessarily inflexible and inefficient. It is proposed to replace the current provisions with those which enable the study and draft plan to be prepared either separately or together, and which require the director-general to notify the relevant bodies of the intention to prepare the study or draft plan either separately or together. This enables the process to remain flexible while in the formulation stage. Those notified will be able to provide their views and have input into the plan preparation process.
There is still a full and open public participation when the environmental study and draft plan is placed on public exhibition. During that time any person may make submissions and have them considered by the director-general. The group of amendments in schedule 9 enhances flexibility by enabling a commission of inquiry to examine specified issues relating to a proposed development or activity, or part of a development or activity. This is in addition to the existing ability to direct a commission of inquiry into all environmental aspects of a proposal. The amendment enables the process of conducting an inquiry to be streamlined, and therefore more effective and efficient. This provides an opportunity for a more focused use of the commission of inquiry mechanism so as to inquire into specific aspects of a proposal of high community or environmental concern.
The third and final group of amendments are a number of housekeeping measures for the purpose of statute law revision. These are set out in
schedule 11, and are: the recognition of multiple owners for the purposes of submitting a development application; the updating of references; removal of unnecessary wording in section 91A(2) concerning the referral of Crown development applications to the Minister; the use of consistent terms of the commencement of the operation of a development consent; and removing cross-referencing to other parts of the Act from the definition of existing uses. Schedule 12 contains the savings and transitional provisions relating to the amendments to the Act. Honourable members should be aware that all the amendments are explained in detail in the explanatory notes relating to the bill. This bill is about improving the efficiency and operation of the Environmental Planning and Assessment Act. These are goals which I am sure everyone with an interest in or experience of the Act will support. I commend the bill to the House.
Debate adjourned on motion by Mr Hartcher.
That this bill be now read a second time.