Planning Reform Setback – Codes Out, Confusion In

The NSW Premier and the Minister for Planning and Infrastructure last week signalled major changes to the application of development codes to new projects. The changes are set to eviscerate much of the potential of the White Paper on Planning Reform in NSW.

The Minister announced by media release:

• code assessable development will only apply in nominated growth areas (e.g., around the North West and South West train lines or areas nominated by councils)
• councils will be allowed to modify the state-wide codes to better reflect their local area
• the target for code assessable developments has been removed entirely
• councils will have to prepare Neighbourhood Impact Statements if they intend to implement code assessable development.

These changes will erode the efficiency and affordability of the planning reforms, effectively subjecting development to the same impediments of slow assessment and public criticism as currently exist. The White Paper set a target of 80% code assessable development within 5 years, but this has now been scrapped. The ability of councils to modify codes will reduce the utility of codes, and render everything from home renovations to multi-dwelling development open to the process of criticism and review that has beleaguered development in the recent past. Councils which wish to take up a code based approach now face an additional bureaucratic process called a Neighbourhood Impact Statement which will further impede the utility of codes. Moreover, code application will be rigidly enforced. In Parliament, the Premier made these statements:

"I should make it clear that if a proponent comes along to a site within a code assessable area'€”in other words, one that has been established by the community'€”and sees that the community has agreed this particular site can support, for example, a five-storey building, that proponent will not, and I emphasise will not, be able to seek to vary the code assessable limit. If they want to go one centimetre over that limit, they will have to go back to a full merit application."

The White Paper had envisaged methods for minor variations to code compliance, and only required merit assessment for those portions of a development that fell outside the code. By contrast, the Premier's language stridently retracts from this philosophy '€“ if you exceed the code by as little as 1 cm, your entire project will be fully merit-assessable. This lack of flexibility defeats much of the potential of the White Paper, which had acknowledged the need to reduce DA costs and timeframes and improve certainty of outcome. Last week's changes will erode these objectives. The revised Planning Bill was due in Parliament this week, but these changes will delay it somewhat.