There’s been some discussion over the years about land use planning, in our rural residential areas in particular. With the public exhibition of our new ‘consolidated’ LEP imminent, I thought I’d follow up on some of my previous articles on the NSW planning system with a brief discussion on the process involved in changing a planning instrument such as a Local Environmental Plan (LEP).
Changes to an LEP are effected through a formal request to the Minister, made through a Planning Proposal, a document that explains the intended effect of a proposed change and sets out the justification, including an assessment of the likely impacts, for amending the relevant LEP. In practice, the Planning Proposal document can be prepared by a council, a landowner or developer seeking to change the planning controls relating to a particular site, area, locality or local government area, or by a third party on behalf of a landowner or council.
To protect communities against poorly conceived, ad hoc planning decisions, a Planning Proposal will generally need to demonstrate its merit in the context of relevant local, regional and state strategic plans and policies. Further, the assessment of this merit is undertaken independently by the Department of Planning, not the proponent or even the local Council. The Department offers guidelines on how a Planning Proposal should be prepared, with explicit reference to the need to consider the strategic context of proposals. Advice is also provided with respect to the need to avoid identifying specific solutions and focus on intended strategic objectives to provide flexibility in the way associated outcomes might be realised.
Once prepared, having identified the relevant strategic objectives and completed any preliminary studies, the Planning Proposal is forwarded to the Department of Planning for independent assessment through what is known as the Gateway process. The purpose of a Gateway determination is to ensure that there is sufficient justification, early in the process, to proceed with a Proposal. It enables Planning Proposals that lack strategic planning merit to be stopped early in the process, limiting unnecessary expenditure of time and resources.
If a Proposal is deemed to have sufficient merit, the Gateway determination will set relevant conditions that must be met before the Proposal can be progressed. These may include further studies being undertaken, public consultation, public hearings, agency consultation and time frames. A Planning Proposal is not usually progressed without conditions of this nature.
If a Gateway determination is issued, the proponent is then obliged to comply with the relevant conditions and, if necessary, amend the Proposal before it is progressed any further. One of the conditions will invariably be the requirement for a period of public exhibition, providing residents with an opportunity to offer formal comment. Council is obliged to review all submissions received during the period of exhibition and may subsequently amend the Proposal to reflect relevant feedback.
The Gateway process is often iterative, where the proponent amends a Proposal in the process of complying with the conditions of a Gateway determination, resulting in the need for resubmission for a further Gateway determination. In the instance where a Planning Proposal is to proceed, the Gateway ultimately needs to be satisfied that the level of information available leads to the conclusion that any potential impacts can be addressed and that the LEP or amendment thereof can be completed within a reasonable timeframe.
Having dealt with any matters conditioned by the Gateway determination, the completed Proposal is again reviewed by the Department and, if considered satisfactory, forwarded to the Parliamentary Counsel for drafting into legislation.
The process can be quite a protracted one, especially when it involves an entire LEP, as evidenced by the fact that the present QPRC LEP consolidation exercise began soon after the amalgamation in 2016. There was a significant body of work undertaken prior to the issue of the Gateway determination a little more than 12 months ago and council was set a May 2020 deadline to complete the process. In line with the conditions of the Gateway determination, the exhibition draft LEP has been endorsed by Council prior to forwarding to the Department for its approval to exhibit. We await their response…
For more detail on the preparation of Planning Proposals, refer to the Departmental publication Guide to Preparing Planning Proposals.