5 ways to improve your planning proposals
Potential appeals of rezoning decisions
As part of its COVID-19 recovery plan, the NSW Government recently announced the NSW Planning Reform Action Plan . The Plan includes proposed reforms to enable appeals to the Land and Environmental Court for rezoning decisions. If amendments to the legislation progress, local councils will need to develop planning proposals that stand up to scrutiny in the courts. Drawing on our experience working within State and local government, in this article, we share five ways local councils can create robust planning proposals. And, at the same time, decrease the risk of delay in the process through the Department.
Role of local councils
A planning proposal is a council document which will be sent to the Department of Planning, Environment and Industry (the Department) for a gateway determination. As stated in the Department’s Guide to Preparing Planning Proposals (2018):
The planning proposal document, which is submitted for a gateway determination is the responsibility of the planning proposal authority (PPA). The PPA is responsible for ensuring that the level of detail in the planning proposal document is sufficient to respond to the statutory requirements of the Act and the requirements set out in this guideline.
As the planning proposal authority, local councils are therefore ultimately responsible for the document.
Five ways to elevate your planning proposal
1. Be clear about the purpose and strategic merit of the proposal
All planning proposals need to be clear in intent. Importantly, they must demonstrate the strategic merit of the proposed amendments to the relevant planning instrument.
Have the proposed changes to the local environmental plan been justified in the regional plan or local growth management strategy or any other approved planning document? If yes, then it can be justified as having ‘strategic merit’. Site-specific merit tests are then applied if the proposal passes the strategic merit test. The Department’s guidelines provide a set of criteria to test strategic merit. These should be at the core of any planning proposal.
The planning proposal must also provide enough information to determine whether there is merit in the proposed amendment. The level of detail should be proportionate to the complexity of the proposal and what may be required to demonstrate that it meets the strategic merit test.
2. Make sure specialist studies support any site-specific amendments
Each planning proposal is unique in its complexity and nature of issues. It is therefore difficult to prescribe standard ‘appropriate information’ to support a proposal in each case. However, any site-specific amendments will need studies such as:
/ how the site will be serviced by the necessary infrastructure
/ preliminary contamination studies
/ environmental assessments
/ traffic and parking assessment
/ bushfire or flooding assessments
It is important for councils to clearly articulate to proponents any studies which will be needed for the planning proposal. A checklist will assist this process. Locale will be happy to provide councils with a copy of a sample checklist for proponents.
3. Justify any inconsistency with section 9.1 Ministerial directions
Considering the relevant section 9.1 Ministerial Direction is in essential exercise when preparing a planning proposal. Many proposals do not explain the inconsistency or do not adequately justify the inconsistency.
A planning proposal should not just simply state if the proposal is consistent or otherwise to the Directions. Where the Direction is relevant, the planning proposal should explain the consistency. Where the planning proposal is inconsistent you will need to justify the inconsistency with the Direction. Relevance to any local council documents provides a good way to do this.
Be careful of changes to the Directions. These can happen without notification to councils. An up to date list can be found on the Department’s website.
4. Don’t forget maps which show the changes
Maps are a critical part of most planning instruments. If the proposed amendment includes changes to any maps, then it is essential to always include maps in the planning proposal.
The proposal needs to show the existing local environmental plan maps and the proposed maps. The maps must also clearly identify the land that is affected.
If possible, include in an appendix of the map tile with the changes according to the Department’s mapping standards. You may think this is not necessary, but the Department will ask for it anyway. Not including it will only slow the process down.
5. Is there anything else a planning proposal needs to include?
Sometimes the planning proposal will need to include specific information to support the amendment. Some examples include:
Development controls: any changes to the Development Control Plan (DCP) may be required for certain planning proposals. So, make sure you include the changes to the DCP in your planning proposal. It will support your justification and how you intend to deal with specific matters that may affect the amendment.
Checklist: an ‘information checklist’ should be developed to identify and agree on the range of key issues for the proposed LEP amendment.
State agencies: if you have contacted any state agencies, say it. Include any written submissions or discussions you have had with them. If you intend to contact certain agencies, make sure you include your intention in the consultation section of your planning proposal.
In summary, there are a number of simple ways local councils can prepare planning proposals to reduce the risk of delay at the Department. If LEP amendments become subject to appeals in the future, these tips will also help you create a robust planning proposal which stands up to scrutiny.
Locale Consulting works with many local councils reviewing and developing planning proposals. You can read more about our experience here.
If you would like help with a proposal or access to our checklist for proponents, please contact Steve on the details below.
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