SUMMARYThis paper examines how ‘sustainable development’ is
conceptualised and proposed to be applied in the NSW planning system set out in
a White Paper and two Exposure Bills – the Planning Bill and the Planning
Administration Bill. An appendix to the paper contains a summary of the
proposed system. Comparison is made with ‘sustainable development’
in the current planning system. Commentary from selected stakeholders provides
some analysis of the proposed system; these comments are too complex and
extensive to be encapsulated in this summary. While a broad cross-section of
stakeholders was selected, this paper does not purport to represent all
stakeholder positions on the White Paper and Exposure Bills.
Definitions and legislative objects
Under the current planning act – the Environmental Planning &
Assessment Act 1979 (EP&A Act) – sustainable development is
defined as ‘ecologically sustainable development’ (ESD). A uniquely
Australian term, ESD contains five principles, including intergenerational
equity, the integration of economic, social and environmental factors, and the
precautionary principle. Since its adoption in 1992 by all Australian
governments, ESD has been incorporated into a large number of Commonwealth,
State and Territory statutes and policies. [3.0]
ESD is one of ten objects of the EP&A Act. The Act does not assign
priority to any of its objects over another. This is problematic because, as
the Act contains objects that may conflict, it leaves decision makers without a
means of resolving these potential conflicts. In addition, use of ESD as an
object equal to the other objects is inconsistent with the internal logic of
ESD. In other NSW legislation, where ESD features as an overarching object, ESD
operates as a means of resolving conflict between competing objects.
[3.1]
Whereas a 2011 Independent Review of the planning system commissioned by the
O’Farrell Government recommended retention of ESD as currently defined,
the White Paper and Exposure Bills adopt a new definition of sustainable
development as follows:
Sustainable development is achieved by the integration of economic,
environmental and social considerations, having regard to present and future
needs, in decision-making about planning and development.
Further, where the Independent Review recommended making ESD the overarching
object of new planning legislation, the Planning Bill includes sustainable
development as one object among nine of equal weight. The new definition of
sustainable development is narrower than ESD, omitting three of the five ESD
principles: the precautionary principle; conservation of biological diversity
and ecological integrity; and improved valuation, pricing and incentive
mechanisms, such as the polluter pays principle. ESD also includes a more
substantial definition of the intergenerational equity principle. [3.3]
Planning instruments
Two types of planning instruments can be made under the EP&A Act: State
Environmental Planning Policies and Local Environmental Plans. The Act provides
that both may be made for the purpose of achieving any of the objects of the
Act. Examples can be found where ESD is an object or aim of both types of
planning instruments. [4.1]
The new system will feature a hierarchy of four strategic plans: NSW
Planning Policies; Regional Growth Plans; Subregional Delivery Plans; and Local
Plans. While the White Paper proposes to include sustainable development in
strategic planning, many of its proposals are not given effect in the Planning
Bill. Rather, several provisions indirectly provide for sustainable development
to be taken into account. Proposed by the Bill are ten strategic planning
principles to guide the preparation of strategic plans. Two of these principles
make reference to having regard to economic, environmental and social
considerations but do not make express reference to the
‘integration’ of these considerations. In provisions that set out
requirements for periodic review of strategic plans, the Bill requires the
responsible body (e.g. a local council) to ensure the plan continues to achieve
the objects of the Act. [4.2]
Decision making
A significant body of case law has developed with regards to the
interpretation and application of ESD under the EP&A Act. It appears that,
according to this environmental jurisprudence, if an administrator does not
take ESD into consideration when making any development assessment
decision under the Act, it will become strong evidence of failure to consider
the public interest, thereby potentially rendering the decision void.
[5.1]
The definition of sustainable development in the objects of the Planning
Bill includes specific reference to it being achieved through decision-making
about planning and development. In light of recent environmental jurisprudence,
it would seem that sustainable development will therefore be a mandatory
consideration in every development assessment decision made by an
administrator under the Bill, irrespective of its application in the body of
the Bill. Of the different development assessment tracks established in the
Bill, only the sections relating to merit assessment provide means by which
sustainable development may be taken into account. No explicit
requirement is made for sustainable development to be taken into account for
complying development, code assessable development, development that requires
environmental impact assessment, State infrastructure development or public
priority infrastructure. [5.2]
The EP&A Act provides for ESD to be taken into account when the
concurrence of a person is required for development that is likely to
significantly affect threatened species. The Planning Bill, on the other hand,
does not require sustainable development to be taken into account when
concurrence is required in relation to threatened species. [5.1 &
5.2]
Environmental impact assessment
Under the EP&A Act, Environmental Impact Statements and Species Impact
Statements must have regard to ESD principles. There is very little detail in
the Planning Bill regarding what must be considered when conducting
environmental impact assessment, these matters in general having been left for
the regulations. No specific provision of the Bill requires Environmental
Impact Statements or Species Impact Statements to take sustainable development
into account. [6.1 & 6.2]