_____________EcoNetwork – Port Stephens Inc______________
_________PO Box 97, Nelson Bay, NSW 2315_________
Planning legislation updates 2017 30.3.2017
NSW Department of Planning and Environment
GPO Box 2001
Sydney NSW 2001
Submission on the draft Environmental Planning and Assessment Amendment Bill 2017
Dear Sir/Madam
EcoNetwork-Port Stephens is a grassroots network of 25 affiliated community groups and eco-businesses addressing local environmental and associated planning issues for the protection and conservation of our unique environmental assets. We are not politically aligned and do not provide donations to any political party.
EcoNetwork regards the Environmental Planning and Assessment Amendment Bill 2017 as an improvement on the failed Planning Bill 2013.
However, there are still shortcomings. As a grassroots environmental advocacy organisation, we attempt in this submission to address what we believe are some of the obvious ones.
Objects
Regarding the Act’s eight Objects, we are pleased that ESD is incorporated. However, to say it will be facilitated in the context of economic, environmental and social considerations contextualizes it in a way that could undermine the principles of ESD: the precautionary principle, intergenerational equity, conservation of biodiversity, and the polluter pays principle.
As human life depends on the natural environment for existence, EcoNetwork believes ecologically sustainable development (ESD) should be the cornerstone of all planning. ESD should be prime Object of the Act, and emphasis should be on the implementation of ESD principles, to ensure decision-making takes account of environmental factors.
The same Object talks about integrating relevant environmental considerations in decision-making. But this can’t be done without clear long-term environmental goals along with short-term targets that measure environmental performance. Essential to goals and targets are reliable data on environmental assets and their condition. There is a paucity of environmental data in NSW so that how humans benefit from nature is poorly understood. Without evidence about the value of ecosystem services, formally accounted for, decision makers can only work in the dark not knowing the cumulative impacts of their decisions.
We recommend that a program to gather data on native vegetation health, river and wetland health, biodiversity of fauna and soil health be part of the Act’s Objects. Biodiversity and ecological integrity should be a fundamental consideration across all decision-making processes, and biodiversity priorities should be embedded in SEPPs and regional plans.
Climate change omission
A glaring omission from the Objects is the need to respond to climate change to reduce greenhouse gas emissions in accordance with NSW and federal emissions reduction targets, global goals and the best available science. Introduction of this Object should also include adaption measures, such as increasing the resilience of communities and the natural and built environment to the effects of unavoidable climate change and increasing preparedness for natural disasters.
There should be a requirement that strategic plans (SEPPs, regional and district plans and LEPs) contribute to reducing emissions and building in adaptation across sectors.
We support the Object to protect the environment, including the conservation of threatened and other species of native animals and plants, but would recommend a wider description that talks about protecting ecosystems, not just species.
We support the Object of good design in the built environment, but good design needs to be clearly defined within the Act with reference to environmental performance standards, and how it improves health, wellbeing and sustainable communities.
We welcome promotion of the sustainable management of built and cultural heritage (including Aboriginal cultural heritage).
We support the provision of increased opportunity for community participation in environmental planning and assessment but are concerned about how such participation will occur in practice.
Community Participation
We generally support proposals that will improve community participation and strategic planning, such as the inclusion of community participation principles and the requirement for planning authorities to develop community engagement plans and provide reasons for decisions.
However the Draft Act says that the planning authority is to have ‘regard’ to the principles when formulating the plan. There is no requirement to implement or comply with them. This needs to be clarified.
There should be a clear legislative requirement to take into account submissions made during the public exhibition period.
Increasing minimum public exhibition requirements, including minimum exhibition periods for State Environmental Planning Policies, could strengthen mandatory provisions for community participation. There should also be mandatory requirements in relation to the re-exhibition of amended plans or applications.
In relation to public exhibition periods, we welcome the exclusion of the Christmas New Year period (20 December to 10 January) from the calculation of the period of public exhibition.
Exempt and complying development
The expansion of exempt and complying development means that a greater range of development can now be carried out without community consultation, which undermines efforts to improve community engagement in planning decisions. Exempt and complying development should be limited to genuinely low impact development.
Strategic planning
We support the requirement for councils to develop and publish Local Strategic Planning Statements on the NSW Planning Portal, which must take account of regional and district plans and the local council’s Community Strategic Plan. However, the community’s role in preparing the statements is uncertain and should be clarified.
Local Planning Panels
New provisions allow a council to constitute local planning panels that can carry out the consent authority functions of local councils to make decisions in place of local councils. While councils will make the rules on what matters go to the Panel, new regulations will empower the Minister to direct a council to appoint one. There is a risk that this power could be abused by the State to override local councils and local communities, which needs to be clarified.
Planning Secretary and Approvals
We are against the proposal to empower the Planning Secretary, in certain circumstances, to act in place of environmental agencies including the Office of Environment and Heritage or the EPA.
Such ‘step-in’ powers designed to speed up approvals pose a risk that the assessment of impacts of development, particularly environmental impacts, will not have to go through the same level of scrutiny as intended by the existing prescribed criteria. Furthermore, environmental approval requirements should be restored for State significant development.
Independent Planning Commission and merits appeals
We are concerned that the Independent Planning Commission, which replaces the Planning Assessment Commission, will continue to override judicial merits review under a new public hearing process during the public exhibition period.
Public hearings are no substitute for a merits appeal in the Land and Environment Court. Third party merit appeal rights should be restored. Being able to appeal significant planning decisions ‘on the merits’ is an essential part of the planning system and promotes community confidence in planning and development assessment procedures.
Internal review provisions for proponents
We oppose the expansion of developers’ rights to seek internal review of decisions, when their applications are refused or if they are unhappy with conditions of consent, particularly as community appeal rights continue to be curtailed. Additional review rights for proponents cause the planning system to be unbalanced as there are no equivalent rights for the community. Internal reviews are the antithesis of transparency and accountability in decision-making and cannot replace existing, formal review mechanisms.
Transitioning to end of Part 3A
We support the removal of transitional provisions that allow some projects to continue as Part 3A projects. We understand that Part 3A projects will be moved into the updated system as State Significant Development or State Significant Infrastructure. However, the Bill suggests that Part 3A may still be preserved in relation to ‘concept plans’. We believe such developments should be transitioned to the SSD or SSI streams and be subject to proper public scrutiny.
Exemptions from concurrences
The community needs to be assured that major projects such as mines and ports are not approved at excessive cost to other values such as biodiversity protection, Aboriginal heritage or the wellbeing of a local town. State Significant Developments (SSD) such as major mines, ports and factories are exempt from the requirement to obtain a range of environmental concurrences and approvals, which does nothing for transparent decision-making. Projects with the greatest impact should receive the greatest scrutiny, which really requires legislation to give effect to measures to improve the quality of environmental impact assessment for major projects. Furthermore there should be a requirement for arms-length peer review for significant EIA reports.
Conclusion
While EcoNetwork regards the Environmental Planning and Assessment Amendment Bill 2017 as an improvement on the Planning Bill 2013, we believe there are shortcomings that need to be addressed. Ecologically Sustainable Development should have primacy in planning, and climate change needs to be taken seriously in consideration of mitigation and adaption responses. Environmental goals should be established and environmental performance, supported by reliable data measured and monitored. Other aspects of proposed amendments need to be tightened up to ensure proper community rights and community participation in decision-making.
Submitted on behalf of EcoNetwork-Port Stephens by Nigel Dique (Secretary), 0423 024819. secretary@econetworkps.org
_________EcoNetwork – affiliated groups________
Tomaree Ratepayers and Residents Assn Inc. National Parks Assn Inc – Hunter Branch
Port Stephens Koalas Inc. Native Animal Trust Fund Inc.
Soldiers Pt/Salamander Bay Tidy Towns Inc. Tilligerry Habitat Inc.
Pindimar/Bundabah Community Assn Inc Port Stephens Park Residents Association
Mambo/Wanda Wetlands Reserve Committee Ocean & Coastal Care Initiatives Inc.
Myall Koala & Environmental Support Group North Arm Cove Residents Association Inc
Shoal Bay Community Association Soldiers Point Community Group
South Tomaree Community Association Inc. No Sandmine in Bobs Farm Inc.
Port Stephens Marine Parks Association Inc. Boomerang Park Action Group