NSW Government Portfolio Committee No.7 – Planning and Environment

A report from a NSW Parliamentary Inquiry into the “Planning system and the impacts of climate change on the environment and communities” was recently released and has made 18 recommendations.

Committee Chair Ms Sue Higginson MLC said in her Forward, “This report presents the committee’s recommendations on how the planning system can better ensure that people and the natural and built environments are protected from and adapting to the impacts of climate change and changing landscapes. Developments currently approved or proposed, the adequacy of planning powers and planning bodies, possible planning reforms and learning from Aboriginal voices are all themes discussed in this report.”

The inquiry was established on 23 August 2023 and received 247 submissions from organisations and concerned citizens across New South Wales. The committee conducted hearings and site visits across New South Wales, including Sydney, the Central Coast, South Coast and North Coast.”

“The committee received evidence about the harmful effects of some historically approved developments, many of which were approved under previous legislation, some which had not yet been built, but remain live in the planning system. These developments are not consistent with our current understanding and the realities of climate change. In many cases these developments will harmfully impact upon wildlife, including threatened species facing extinction, such as koalas, greater gliders and endangered ecological communities. These developments should not be able to proceed. However, there are barriers for consent authorities to review and modify or revoke these development consents. “

This report makes 18 recommendations in total, including that the NSW Government seek to amend provisions of the Environmental Planning and Assessment Act 1979 relating to historical development approvals, increasing the threshold for developers to have undertaken action in commencing physical works in order to prevent their development consent from lapsing, and for the NSW Government to consider a mechanism with appropriate thresholds for the reassessment of historical development consents. The report recommends the NSW Government consider giving power to consent authorities to revoke or modify development approvals where it can be demonstrated that the development will have significant social, environmental or cultural impacts not previously identified or that have changed from the time of approval and in certain circumstances, do so without the need to compensate for that change. “

“The committee heard that in order to properly address climate change in the planning system, the Environmental Planning and Assessment Act 1979 must be amended, noting in particular that the Act does not currently mention climate change. It is now one year since the Climate Change (Net Zero Future) Act 2023 commenced in New South Wales, which amongst other things introduced emissions reduction targets. Yet this year the Minister for Climate Change issued a Ministerial Statement warning that New South Wales is not on track to meet these targets.

The Minister’s statement contained a clear message to entities and decision makers responsible for assessment and decision making processes under the Environmental Planning and Assessment Act 1979 that they should consider New South Wales’ obligations to reduce emissions when dealing with development. The Minister for Planning then wrote to the Independent Planning Commission, the body responsible for decision making in relation to high emitting projects, pointing to the Minister’s Statement and the Climate Change (Net Zero Future) Act 2023.

“Given the inextricable link between climate change and the planning system, the Environmental Planning and Assessment Act 1979 should contain provisions requiring decision makers to ensure development is meeting emissions reduction requirements and that the impacts of climate change and the need to prepare and adapt to those impacts are central considerations in all decisions under the planning system. Alternatively, but less desirable, a state environmental planning policy could be introduced to properly integrate climate change within the planning system.”

Recommendations

Recommendation 1

That the NSW Government consider implementing a system for when the Minister for Planning may request the Independent Planning Commission to conduct a public hearing for any development.

Recommendation 2

That the NSW Government seek to amend provisions of the Environmental Planning and Assessment Act 1979 relating to historical developments to: • increase the threshold required for developers to have undertaken action in commencing physical works in order to prevent their development consent from lapsing after 5 years • consider a mechanism with appropriate thresholds for consent authorities to assess whether a historical development consent should be reassessed, and • consider giving power to consent authorities to revoke or modify historical development consents, where it can be demonstrated that the development will have significant social, environmental or cultural impact not previously identified or that has been changed from the time of approval.

Recommendation 3

That the NSW Government consider amending the Environmental Planning and Assessment Act 1979 to make the powers to consent authorities to modify or revoke development consents in the public interest, and that if a consent authority exercises the power to revoke a development consent, that no compensation is to be paid by the consent authority to the aggrieved person.

Recommendation 4

That the NSW Government consider implementing:

• all of the recommendations of the statutory review of the Biodiversity Conservation Act 2016
• planning instruments that provide for the retention and creation of deep soil, native tree cover and habitat in urban areas
• guidelines for a clear and transparent process for when the Minister for Planning will refer a development to the Federal Minister for the Environment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Recommendation 5

That the NSW Government review the need for legislation amending the Environmental Planning and Assessment Act 1979 or a state environmental planning policy to consider climate change within the planning system alongside the need to deliver development outcomes, including housing diversity, supply of industrial land and critical infrastructure.

 Recommendation 6

That the NSW Government consider ways to improve the independence of the assessment of planning proposals and development applications, without increasing the time taken to assess such proposals.

Recommendation 7

That the NSW Government investigate the establishment of a centralised source for all government held planning data accessible to all councils across New South Wales, including:

• flood, coastal inundation and fire
• biodiversity
• climate modelling
• any other relevant data.

Recommendation 8

That the NSW Government continue to support councils to undertake their functions in respect of addressing climate change where necessary, such as: • assessing the need for additional funding • making sure councils have appropriate skills to assess large and complex proposals.

Recommendation 9

That the NSW Government implement enforceable measures and progress legislative change to ensure planning authorities:

• better reach communities using ongoing access to modern tools and a central database to inform them about development proposals in their local areas and
• provide increased, meaningful and impactful opportunities for community participation in the planning process.

Recommendation 10

That the NSW Government review deemed refusal appeals under section 8.17 of the Environmental Planning and Assessment Act 1979 and consider the impacts that deemed refusal appeals have on local councils, particularly in relation to the costs incurred in defending these appeals and the strain that this has on council resources.

Recommendation 11

That the NSW Government look into strengthening Development Control Plans so that provisions within Development Control Plans bear greater weight when considered in the Land and Environment Court and so that they can be enforced.

Recommendation 12

That the NSW Government introduce a formalised governance structure at the State level to provide leadership and better assist local coastal councils with the management of catchments, funding and administrative constraints in relation to their Coastal Management Plans.

Recommendation 13

That the NSW Government:

• implement statutory planning controls to mitigate the urban heat island effect, either through legislation, changes to the Sustainable Buildings SEPP, and/or any other relevant instruments
• advocate for changes to the National Construction Code, through the Australian Building Codes Board, to help ensure that infrastructure is resilient to climate change impacts.

Recommendation 14

That the NSW Government develop a more comprehensive and coordinated climate adaptation framework which can be implemented at local scale which:

• integrates climate resilience and preparedness measures into all aspects of planning and development
• identifies climate risks and prioritises specific actions being taken to reduce those risks.

Recommendation 15

That the NSW Government enhance land use planning processes to take into account climate change risks, including the development of clear guidelines about where homes and infrastructure should and should not be located.

Recommendation 16

That the NSW Government continue to work through the NSW Reconstruction Authority to develop a state policy for managed relocation in situations where this may be a viable solution for communities or specific sites.

Recommendation 17

That the NSW Government give effect to the right of First Nations people to self-determination and the principle of free, prior, informed and ongoing consent in the New South Wales planning system, including in relation to:

• development applications and planning proposals • culturally appropriate consultation and
• protection of cultural heritage and connection to Country.

Recommendation 18

That the NSW Government in partnership with local Aboriginal land councils and other Aboriginal land holders, in land claims processes to identify and activate land suitable for development and progress any necessary rezonings to enable that development and where parties agree, consider land swaps where lands are not suitable for development due to biodiversity and climate change constraints.

Eurobodalla Shire Council and the South coast Health and Sustainability Alliance made submissions to the Inquiry.

In its submission to the inquiry, Eurobodalla Shire Council noted that the planning system inherently puts economic considerations at odds with climate change considerations:

“Urban and regional planning requires balancing a range of environmental, community and economic development priorities that might sometimes compete and even conflict with climate change adaptation options. It is fundamental that the NSW Government shows strong and consistent leadership to guide the difficult decision making process by providing clear evidence and consistent approaches within the NSW planning system.”

“Southcoast Health & Sustainability Alliance expressed concerns with Aboriginal community consultation on the Eurobodalla Rural Lands Planning Proposal (ERLPP) and draft Rural Lands Strategy (RLS) by Eurobodalla Shire Council.619 The ERLPP was a ‘major planning amendment to the Eurobodalla Local Environmental Plan which affected more than 90,000 hectares.’620 The Alliance said despite the local Aboriginal community having ‘strong links to Eurobodalla’s coastal landscapes’, they were not ‘formally consulted about the impacts on, or conservation of, their heritage in relation to either the ERLPP or RLS.”

READ the Report HERE

https://www.parliament.nsw.gov.au/lcdocs/inquiries/2987/Report%20No.%2024%20-%20Portfolio%20Committee%20No.%207%20-%20Planning%20system%20and%20the%20impacts%20of%20climate%20change%20on%20the%20environment%20and%20communities.pdf