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A New Approach to Rezoning in NSW

The NSW Department of Planning, Industry and Environment has proposed a new approach to rezoning in NSW, which at first glance it appears to be a step in the right direction, but when taking a closer look there are several key concerns about its implementation.

Key Points:

  • Under the proposed system, DPIE and the Regional Planning Panels will be removed entirely from the process for most rezoning applications; and Gateway determination will be replaced by an initial scoping study review by the local Council. 
  • A significant concern of the new suggested process is the way DPIE intend to measure the time required to rezone land, with the assessment clock only starting after the scoping study, public exhibition, and response to public exhibition stages have been completed.
  • Under the proposed system, there does not appear to be a review mechanism available until the very end of the process, after public exhibition and completion of all technical studies.

The NSW Department of Planning, Industry and Environment (DPIE) has recently released ‘A New Approach to Rezoning Discussion Paper’. Barker Ryan Stewart welcomes this directive to improve a system that has real on the ground impacts on the delivery of land and housing to our State.

The Discussion Paper touts reduced complexity and improved timeframes to process rezoning applications. But will there be actual improvements, or just a shuffling of deck chairs to make it appear like the Department is processing applications more quickly?

Removal of DPIE from the Rezoning Process

Under the current system, there are a number of checks and balances in the rezoning process before proponents are required to prepare detailed technical studies. This saves time and expense for prospective rezoning works.

The first step involves obtaining Council’s in-principle support for a rezoning.  If Council supports the rezoning proposal, the matter is referred to DPIE for what is known in the industry as a Gateway determination.  If Council does not initially support the rezoning application or takes longer than 90 days to consider the application, the rezoning application can be referred to a Regional Planning Panel for independent review.

This existing process provides a level of certainty for the proponent on whether the rezoning application has merit and whether investment in further technical studies is worthwhile.

Under the proposed system, DPIE and the Regional Planning Panels will be removed entirely from the process for most rezoning applications; and the Gateway step will be replaced by an initial scoping study review by the local Council. 

Following lodgement of a Scoping Study, the local Council will be responsible for issuing a list of technical studies required to be completed prior to lodgement of the rezoning application.

Unlike the current system, proponents will be required to complete expensive technical studies upfront without a level of certainty that the rezoning will be supported.

The removal of the Gateway process and the review mechanism by Regional Planning Panels in turn removes checks and balances from the system and requires significant upfront investment with no certainty that the rezoning will be supported. It also places considerable upfront burden on the local Councils that are already overburdened with planning matters.

Concerns have also been raised that the list of requirements at the scoping stage could be overly exhaustive and, in some instances, proponents could be at the mercy of local politics. To combat these concerns, we have submitted to DPIE the following recommendations:

  1. The scoping review should include a combination of Council, DPIE and relevant State Agency representatives to ensure the scoping study review is based on consideration of strategic merit and is not influenced by local politics.
  2. All relevant State Agencies should be consulted during the scoping review and their requirements must be included in the Submission Requirements issued to the proponent.
  3. A mechanism should be put in place to ensure that State agencies (TfNSW, RFS etc) will respond in a timely manner at the scoping stage.
  4. The Submission Requirements should be based on a pre-determined list of studies and not a broad framework that include unnecessary studies that will slow down the rezoning process and cause additional expense.
  5. The Submission Requirements should include an in-principle indication of whether the rezoning is, or isn’t, likely to be supported.  This is important as proponents will not want to undertake expensive and time-consuming technical studies if the Council is unlikely to support the rezoning.

The Assessment Clock

Another significant concern with the new suggested process is the way DPIE intend to measure the time required to rezone land.

According to the Discussion Paper, the assessment clock only starts after the scoping study, public exhibition, and response to public exhibition stages have been completed.

We estimate that the actual time from the initial scoping stage through to preparation of detailed technical studies and public exhibition can range between 6-12 months depending on the extent of studies required. 

The proposed starting of the assessment clock after all this work is completed will look good on DPIE’s reporting but doesn’t truly reflect the time required to get land rezoned. Misdirection by moving the deck chairs isn’t a real commitment to streamlining the process.

Whilst we commend any attempt to improve assessment timeframes, there should be further consideration on how the entire process can be shortened, including the considerable time required to complete technical studies.

We also note that Councils are not as well-resourced as DPIE and there are differences between Councils in terms of staffing resources and capabilities. We ask DPIE to consider any State funded opportunities to provide adequate resourcing for Councils to ensure timely and capable assessment of rezoning applications.

The Appeal Process

Currently, if a Council refuses to forward a Planning Proposal for Gateway determination, or takes longer than 90 days, a proponent can request a Pre-Gateway review by the Regional Planning Panel.

Under the proposed system, there does not appear to be a review mechanism available until the very end of the process, after public exhibition and completion of all technical studies.

To provide a greater level of certainty under the proposed process, we recommend that an in-principle indication from the Council must be provided at the scoping stage on whether they are likely to support the rezoning. Or if where it is doesn’t provide in-principle support, a similar opportunity to the current situation should be provided.

The Discussion Paper includes consideration on a possible review process by the Independent Planning Commission (IPC), or a formal appeal through the Land and Environment Court (LEC) at the end of the process, if a rezoning is not granted. 

We support the opportunity to review/appeal rezoning decisions however it remains something that will need to be considered closely to determine whether an independent review by the IPC or a legal appeal through the LEC is a better approach.

How can Barker Ryan Stewart assist?

For further information on the DPIE’s discussion paper and how the proposed changes could impact your project, please don’t hesitate to contact our experienced team of planners.

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