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Put Up a Park(ing) Lot – Developments in Ecologically Sustainable Planning
Substantive Law| What area(s) of law does this episode consider? | International environmental and planning law, and planning law in New South Wales including:
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| Why is this topic relevant? | Sitting frequently at the intersection of law and politics, city planning and the protection of public spaces and the environment is an often contentious issue. Since the 1970s, there has been an increasing push for more public participation in the planning process beyond a unitary decision at the ballot box. In New South Wales, the way that State Environmental Planning Policies and Local Environmental Plans interact is often complicated and varies between localities. |
| What legislation is considered in this episode? | Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) |
| What cases are considered in this episode? | Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
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| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Book written by the EDO ‘Caring for Country’ Amelia Thorpe: ‘Owning the Street: The Everyday Life of Property’ |
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Planning law regulates the development and management of the spaces in which we live. It’s both connected to the law of property but occupying a separate legal space of its own as well and planning law operates at the level of a neighbours dispute over a new residential building extension all the way to the level of how land should be used and managed for many future generations to come. Our guest, today, Amelia Thorpe, teaches and writes about planning, property and ownership and participates in the day-to-day processes associated with planning law through her roles, various government authorities and bodies. Amelia, thanks so much for joining me today on Hearsay. |
| Amelia Thorpe: | Thanks David, good to be here. |
| DT: | Now, Amelia, your background in planning was a little unusual, because you’ve seen it from a few different professional perspectives. You’re a planning lawyer but you also have a background in architecture. I can’t imagine that’s very common. |
| AT:
2:00 | Yeah, quite an unusual background. I guess I was always interested in cities and I remember, as a high school student, reading about cities and the connection between cities and climate change and thinking; yes, this is what I want to do but not being exactly sure, the best way to do that. So, architecture was where I started off, with the idea that we would design better cities. As I worked in architecture, I realised I was actually interested in more than the individual buildings. So, instead of working as an architect, I worked in planning and then again I realized I haven’t got it quite right yet. By the time stuff gets to the planner or the designer, I felt like it was often too late and that what I really wanted to work on was setting up the frameworks about the kinds of designs and the kinds of plans that are possible. So, that’s what led me from architecture to planning and then eventually into law. I guess In terms of how it influences my approach, it is still that same I really want to make cities better places so I’m really aware of the barriers to doing that and I’m always interested in how can we use law to make things better in a practical way. |
| DT: | I love that idea that there’s a consistent goal there, to make better cities, but you’ve gone from the tactical to the strategic to the super strategic. You’ve moved outwards in scope each of those three roles, that’s really cool. I don’t know that many people who’ve had many broad professional experiences who maybe transition from one profession to another have that same consistency of goal or of passion, which is fantastic. One of the roles you’ve had in environment and planning law is as director of the Environmental Defenders Office in New South Wales. Can you tell me a little bit about that role? |
| AT: 3:00
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7:00 | So, I wasn’t the head of the EDO, we had a number of directors and the area that I directed was EDO’s programs. So, that was legal education and outreach in New South Wales and then also capacity building internationally. So, I looked after community legal education workshops in New South Wales. So, a community group that there might be a big development being proposed nearby go and provide them some advice about how the process works and how they could get involved. We would also do proactive education so we produced a book called ‘Caring for Country’ that was about empowering indigenous communities to engage better with the legal system. Then also internationally, the capacity building program was working with communities in the South Pacific so PNG, Solomon Islands, Fiji, Samoa and the main issue there was really climate change, climate change connected to forestry in a lot of Melanesia, that’s the big issue there, the loss of forests and there are a couple of small environmental organisations and certainly in PNG there is something similar to the EDO, but just much, much less resources. So, really working with them to try to build up their capacity to help them protect their amazing places before they disappear. TIP: The Environmental Defender’s Office, or the EDO, is a non-government, not-for-profit legal organisation that uses the law to protect wildlife, people and the environment. It’s actually the largest environmental legal centre in the Asia-Pacific region, working in areas such as climate change, biodiversity, water and ensuring healthy communities. The EDO achieves justice for the environment by:
The EDO’s recent victories include successfully resisting an appeal against the NSW Independent Planning Commission’s decision to reject the KEPCO Bylong Valley coal mine in September 2021, and the NSW Land and Environment Court’s August 2021 decision ruling that the NSW Environment Protection Authority had a duty to take meaningful action to address climate change. I also worked with small island states in the UN climate negotiations. So, going along and providing legal advice during meetings, helping again, what I felt like was just an incredibly unfair process. The level of resources that the countries like Australia have in those negotiations compared to a country like PNG or Nauru was the country that I most directly worked with. There’s very, very little resources to negotiate at a process like that, so helping them at those meetings and in preparation for those meetings. I guess that was a bit of a deviation from the work that I’ve done before that was very cities-focused. I felt like I’m going to go and do climate change at the international level. This is where I can really fix things and it really pushed me back to wanting to go at the local level. I felt like that international process was not having any effect. Certainly not the bits that I was in. Obviously, we’ve just had the most recent COP in Glasgow. TIP: The United Nations Climate Change Conference of the Parties – or COP for short – was hosted in Glasgow from the 31st of October to the 13th of November 2021. COP brings together nations to encourage action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change. 2021 marked the 26th COP and it was a particularly important one as it marked 5 years since the Paris Agreement was signed. In 2015, at COP21, nations agreed that every 5 years, they would announce their progress on limiting global warming to below 2 degrees and update their climate action plan accordingly. Now, some of those keen ones playing at home might notice that it actually has been 6 years since the Paris Agreement in 2015 but COP26 was delayed by a year due to the COVID-19 pandemic. I have so much respect for some of those people that are still there and working with those people many years ago. It’s fantastic that they keep plugging away at a process that seems just so difficult. It took me back to wanting to work locally at places where I feel like I can make more of a difference. |
| DT:
8:00 | That idea of capacity building both at a local and international level, I’d love to know more about that. Let’s talk about that case of a community who are grappling with the effect of a large development on their community and the EDO’s role in educating them about the way they can be involved in the process. What kind of outcomes did you see from that sort of outreach? Did you see that communities were able to influence the course of the planning and development process or that they were able to be more comfortable with the way that process operated? What kind of outcomes did that achieve? |
| AT:
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10:00 | Well, certainly the EDO has had some great wins over the years, so the Rocky Hill case is a relatively recent case where the EDO was able to successfully represent a community to prevent the expansion of a large coal mine. So, really, a great outcome there. TIP: Let’s take a closer look at the facts of the Rocky Hill case. This was a case decided by Chief Justice Brian Preston of the NSW Land and Environment Court in 2019. The Rocky Hill Mine Project was a proposal to mine 21 million tonnes of coal in Gloucester Valley over 16 years. The proposal was refused by the NSW Planning Assessment Commission (or PAC for short as it then was) and Gloucester Resources Limited, the applicant, subsequently appealed that decision to the Land and Environment Court. A community group – Groundswell Gloucester Inc – opposed the development application on the basis that it would contribute to anthropogenic climate change. Now, interestingly, the PAC denied the coal mine for planning reasons exclusively. It said that the economic benefits of the mine were outweighed by the detriment to the quality of life of nearby residents, not considering the impact of the coal mine on climate change at all, but Groundswell Gloucester was nevertheless able to raise the issue because, pursuant to s 8.14 of the Environmental Planning and Assessment Act 1979, the Court considering an application of this type, exercises all of the functions and discretions of the consent authority for the purposes of hearing and disposing of an appeal – effectively, the decision is made fresh by the Court, and is not restricted to the arguments or bases relied upon by the original consent authority. Preston CJ found that the mine should be refused due to the significant planning, social and visual impacts of it. Now, these impacts were unable to be mitigated effectively, which is why the project was scrapped in its entirety. This was the main reasoning for the decision, however, potential greenhouse gas emissions arising from the project and the subsequent impact on climate change were considered in the Chief Justice’s udgment. As a result, the Rocky HIll decision marked the first rejection of planning permission for a coal mine in Australia where climate change was expressly considered as a factor in that decision. So the kind of outreach stuff I would be doing would be earlier stage and just explaining how the process worked and where the opportunities for communities to get involved are. So even at a basic level of understanding how to write a good submission. So, understanding what other kinds of things you can say in a submission that will be influential and then what are the kinds of things that, even though a decision maker might have some sympathy, they’re not within the scope of the law for them to actually do anything with that information. My work was at that earlier stage, just explaining how the process works and where are the opportunities to get involved and then sometimes that would lead to litigation and that would then be handing over to the solicitors at the EDO to run those cases. |
| DT: 11:00 | That kind of fantastic mission that all CLCs have to demystify the law and help it be understood by a layperson that it shouldn’t be gatekept by lawyers, I suppose. |
| AT: | Going back to your earlier question about how does my architecture background influence my approach to law. There’s an idea for people who aren’t lawyers that there’s some mystique about law. That other people can’t do it, you need to have a law degree to understand it. I felt like ‘oh, it’s not actually that different.’ I did problem solving in architecture. I did critical analysis and worked my way around how to design something and I feel that law is not that different. |
| DT: | And at the international level, maybe less so in terms of the bilateral and multilateral treaty negotiation, but the capacity building for communities in the Pacific. I imagine there’s a great deal of variation in terms of the quality of environmental law and policy frameworks that are available to those communities as tools to influence the planning process. Could you tell me a little bit about that? |
| AT: 12:00 | So, PNG was where the EDO had the longest running relationship and going there and seeing the way things worked, I felt like they don’t really need environmental law, there’s just broader rule of law issues here. So, yes, certainly still some work and there have been some successes there around, particularly, forestry and corruption cases but, if I think back on capacity building, one of the people that I worked with who was working in environmental law left and started just working on anti-corruption and I feel like not a direct environmental law outcome but actually, a really fantastic outcome. |
| DT: | Kind of a Maslow’s hierarchy of needs issue there, isn’t there? Where in order to have a reliable planning law framework, you need to have a reliable rule of law and a reliable legal framework and an ability to, appeal administrative decisions made contrary to law and all these kinds of things that we take for granted here. |
| AT: 13:00 | I mean it’s so far beyond my expertise, but really highlights the issues about putting our Western legal system into a country like PNG and expecting them just to operate with our legal system where there’s so many other different cultural systems that mean it just doesn’t work the way it works in Australia or England or the US. There’s a whole lot of other issues there that mean it’s never going to operate the same way it does in Australia. |
| DT: | It’s not necessarily adapted for purpose, it’s just kind of dropped in there, yep. |
| AT: | Yeah, exactly. Yeah. |
| DT: | Now I wanted to ask you about some of your publishing as well because you’ve released a lot of publications in this area over your career, including your publication in 2020, ‘Owning the Street: The Everyday Life of Property’. Can you tell us a little bit more about that work and the themes that you explored in it? |
| AT:
14:00 | Sure, so that book started with an interest in public participation in planning. You’ve probably guessed from some of the other things I’ve said, that’s something I’m really interested in. A lot of the work at EDO was about opposing developments, about stopping coal mines or protecting bushland and certainly in my working government as well, I found that that was the main way that we engage communities when there’s some sort of development, we invite objections and I was interested in other kinds of participation where we might be getting communities to talk about not just what they don’t want, but what they do want and so I was looking for examples that I wanted to understand. When does that work? And my initial aim was that I would have a series of case studies in the book, but actually the one case study that I worked on first took over and became the whole book. So that was an event called Park(ing) Day, which started in San Francisco in 2005. It was a very short, playful intervention. Three friends, a young lawyer and two landscape architecture students, had this idea that if you pay the parking meter, then you’re renting the space, that that payment of the meter creates a lease and so instead of parking a car, they decided to use their lease to create a park. So, they rolled out some lawn, put a tree and a bench and invited people to come and sit in their park and it was really playful. They took photos though and put those photos online and, I guess, being San Francisco in 2005, those photos went viral and very quickly there were people saying, ‘how do we do this in our cities?’ and within a month there were others happening in other parts of the US and also as far away as Italy. |
| DT: | Wow. |
| AT: 15:00
16:00 | It was an idea that really captured people’s imagination and so these three friends were getting so much interest that they decided to try to capture that passion and build something bigger. So, the following year they had International Park(ing) Day, where people did it all over the world and it still continues. So, it’s always the third Friday of September, it happened again this year. I don’t think it’s as big as it was. This group; Rebar, they called themselves, at the peak of their counting, there were over 1000 of these around the world. It’s an idea that really captures people’s imagination and so in my project I interviewed people in San Francisco who’d been involved. Also, in Sydney and then the third city that I looked at was Montreal, which at the time that I did it there was a lot happening there were about 200 there the year that I was there. And what I found really interesting in looking at these people’s participation in those parks, there’s some that are like that first one where there’s a tree and a bench and a park, but there was a huge variety. So, there was a marriage, two men got married, as part of a statement about gay marriage, there was another one where they set up a clinic providing free healthcare for undocumented migrants. There were others that would have environmental messages or messages about agriculture and local food or all sorts of messages and quite exciting things where people were expressing their ideas about what they wanted to see more of rather than what they didn’t want to see. And what I found really exciting, in speaking to people about this, was that a lot of people used words like profound and transformative and said that experience of going out into public space and changing that they found empowering and set them on the path of doing other things. So, people I interviewed had gone on and set up community groups, left their job and set up their own smaller practice and started doing other things. So yeah, I was really interested in this idea about participating in a positive way and it was very positive for those participants as well. A lot of them went on into longer term, more lasting things. |
| DT: 17:00 | It is a really interesting way of expressing the desires that the residents of a city or a town or a place might have for what they want in their public spaces other than car spaces. This idea of most cities being designed for the automobile first and thinking of different ways to use those spaces. Do you have an idea or have you seen some examples of how this concept of a more positive approach to participation in planning can be scaled up to something that’s not just symbolic and demonstrative but practical as well? |
| AT:
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19:00 | It’s such a hard question and I had really great discussions with Rebar, the people that originally founded that they actually were very successful, and Rebar no longer exists. Two of the three friends are now the US directors of Gehl Studio and Jan Gehl is a very famous designer who’s done work, for example on George Street in Sydney. So, they certainly went from that small scale to being very large and influential internationally and they said they have tried many times to recreate that Park(ing) Day and have never managed, it’s really quite a unique idea, I think, that balance between being small enough that it’s accessible, scripted enough that it’s easy to work out what to do, but then also open enough that you can do whatever you want with it. It’s quite a unique blend of things. So the book talks a lot about property theory and also psychology and other theories about this idea of ownership and so what I found was for people to get involved in the city, you need a sense of ownership, you need a feeling like this is my street or this is my city, I belong here and then going out and doing those interventions builds that feeling even more and so then you’re able to do more, things like starting organisations. People who did Park(ing) Day might go on and run for local council or get involved in politics in some other way. So, I guess it’s not a really clear path; you do Park(ing) Day and then you do this bigger thing, but you build that sense of ownership, that sense of agency and then people go on and do all sorts of different things with that. If you compare it to a standard planning process where you get a letter in the mail or you see an ad online saying, ‘we’re proposing this development here, write your comments by this date and send a letter off’ that who knows who will read and who knows what they will do with it, you don’t get that sense of ownership. It’s someone else’s process and you can make some comment, but you’re really not involved. You don’t know what’s going to happen. It’s a disempowering process as opposed to an empowering process. |
| DT: | And I suppose one of the pragmatic effects of Park(ing) Day could be that people do feel that sense of ownership and then feel a sense of motivation to participate in the more traditional planning processes that they might otherwise feel disempowered to do. |
| AT:
20:00 | Exactly, yeah, and there was a great example in Montreal where two people who did it, and they were even quite skeptical they didn’t particularly want to do it, they were uni students and the union said ‘can you do something to show off our uni?’ and so they did something on the street, outside the university, but they had such a great experience that they then went away and they formed a group called Land which is about identifying unused space and supporting local communities to turn those unused spaces into community gardens and they have been really interested in working in poorer communities and trying to use that as a way to engage disadvantaged, marginalized communities into reshaping public space. There’s lots of exciting stories about how giving people that little bit of agency can go on and build so much more. |
| DT: | It’s really cool. I think it’s really great to talk about this real-world expression of the concept of owning our public spaces because it’s a nice introduction to a slightly more down to Earth part of our episode, which is about planning law in New South Wales, but I think it’s a good primer for us to start that topic because hopefully as we go through the state and local levels of planning in New South Wales. We’ll be thinking now about the fact that these are places that belong to us that we inhabit them and that we should feel a sense of ownership and inclusion in decision making about those places in the process that we’re about to talk about. So, the Environmental Planning and Assessment Act 1979 is the legislation that governs the process in New South Wales. What kind of policy settings is the EPA Act really designed to enshrine or implement? |
| AT: 21:00
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24:00 | You can see the range of things the Act is trying to do in the objects, section 1.3, and I always show this slide to my students because there’s a long list and there’s no way you could do everything, there’s a lot of conflicting objects in there. It’s really an Act that’s trying to do a lot of things. The history of the Act, so as you said, passed in 1979 and one of the big drivers for the passage of that act was the green ban movement of the early 70s in Sydney, which was a response to the rapid change that was happening in Sydney. So, we’d had decades of growth after World War Two, and enormous change and particularly by the early 70s we were seeing old terrace houses being knocked down to make way for freeways and high-rise buildings and there was a frustration among community groups that there was no process to get involved in that. TIP: For those who don’t know, the green ban movement, arising out of industrial action taken by the Builders Labourers Foundation in the 70s, aimed to protect parkland, low income housing and buildings with historical significance. The first notable green ban movement occurred in 1971 with the aim of protecting Kelly’s Bush. Kelly’s Bush was the last remaining open space in the Hunter’s Hill area and construction firm AV Jennings planned to build luxury houses on the land. After failed calls to the local council, the mayor and the Premier of New South Wales, a group of locals approached the Builders Labourers Foundation. The BLF asked the group to call a public meeting, which was attended by over 600 residents of the area. The BLF announced that their members would strike and refuse to work on the Kelly’s Bush project for AV Jennings. In response, the developer, AV Jennings, announced that they would use non-union labour as strikebreakers on the Kelly’s Bush project. In response to that, the BLF threatened that its members working on other AV Jennings construction projects elsewhere in NSW would stop work, resulting in the developer eventually abandoning all plans to develop Kelly’s Bush. But Kelly’s Bush wasn’t the last example of industrial action taken to protect the environment. Other green bans followed, such as those organised to protect historic buildings at The Rocks and also to prevent the Royal Botanic Gardens from being flattened and used as a carpark for the Sydney Opera House. Really the only way if you said you didn’t want your area to be demolished to make way for high-rise development was the political process and so some areas, Paddington, for example, reasonably well connected, they were able to stop those kinds of changes. Other areas where the communities were less well connected, really not much success through the political process and so we ended up with the passage of the EPA Act and alongside that also the creation of the Land and Environment Court. Two years earlier, in 1977, the passage of the Heritage Act and then also in ‘79 the Legal Aid Act, which made provision for environmental law funding, something we don’t have anymore now, but certainly, that was the idea that we would have this comprehensive range of policies that would enable communities to have more of a say. So the EPA Act, if you think about earlier policies about incorporating environmental assessment in development and not just building your building, but also thinking about the wider impacts. Also, some of the important objects were providing for public participation. So, opportunities for people to comment before a development. So, to comment at that development assessment stage and then also at the planning stage and then also provision for merits review, which is something quite significant that we have in NSW, merits review of development decisions. That would be the common story that you would hear, that we got the EPA Act because of the green bans, but I think there were also other pressures as well. So, the real estate industry was also lobbying for this kind of change. So, the real estate industry wanted some kind of public participation. They were realising that if you had none at all, then you didn’t get anything through, you just created. So, actually there was a driver from many angles, saying that, ‘we actually need to have a more comprehensive planning process if there’s going to be legitimacy, if the public is going to acceptably need to do something better than just leave it to decision makers to be accountable at Election Day and that be it.’ |
| DT: 25:00 | That is interesting that, at a surface level, there’s this story about grassroots support for community involvement in planning but at the same time, a recognition from industry that without some level of compromise politicians might just be too nervous about offending the electorate to actually make way for growth and progress. |
| AT: | Well, maybe less nervousness, or maybe more just pushing stuff through, but then creating protest, you know? If you go too far, better to have a process where the developers know this is where their community is going to engage and we can manage this bit and have a set place where we deal with that rather than the risk of protest at any point, potentially derailing things. |
| DT: | I suppose it’s sort of an orderly and predictable level of involvement and participation. |
| AT: | Yeah, exactly, yeah. |
| DT: | You mentioned merits review of planning decisions in New South Wales. Can you tell me a little bit more about the merits review process? |
| AT: 26:00 | Sure, so one of the things that the EPA Act did was set up different types of development, so, set up different kinds of assessment processes. So, if you’re just doing a very small alteration to your house, it’s going to be a very straightforward process, whereas if you’re doing a very large development that might have some some bigger impacts, you’re going to have a much more extensive environmental assessment and public exhibition process and different types of assessment for different types of development and so merits review comes when you have what’s called ‘designated development’, so those are developments that are likely to have more significant environmental impacts and you can find the list there, there’s types of designated development depending on the location, if they’re in a sensitive area or the size of the development or the type of thing that’s being built. So once you do that, you have, with designated development as part of the process, exhibition and afterwards, when it’s decided whether it will be approved or not or most likely approved with some conditions, anyone who made a submission earlier in that process gets merit appeal rights to challenge that decision in the Land Environment Court |
| DT: 27:00 | So the standing to bring a merit review application depends on your participation in the process at an earlier stage to make a submission. |
| AT: | Exactly, yeah. |
| DT: | And is there any standing rule in terms of your ability to make a submission at that earlier stage. |
| AT: | No, it’s open to anyone. |
| DT: | Isn’t that interesting? It’s kind of an opt-in standing provision. You have standing so long as you had the foresight to seek it, almost. I’ve never come across a standing rule like that in another context, that’s fascinating. |
| AT: | Highlights why that EDO community capacity building is so important. This is how you make a submission, yeah, and you need to make a submission. |
| DT: | Absolutely. It actually does come back to that first question we talked about the practical impact of community capacity building. It gives them a voice at a later stage in the process. If, as you said, it ultimately reaches a litigious point and when an application for merits review is brought in the Land and Environment Court, what is the question that the Court has to answer on the application of an aggrieved party? |
| AT: 28:00 | It’s merits review, so the court is standing in the shoes of the original decision maker, so it’s going back to that long list of objects that I mentioned earlier in the EPA Act. Is the decision consistent with the EPA Act? So I discussed the range of policies at the start, when the legislation was passed, but also there’s been others added since, so affordable housing is an object that’s been added to the Act more recently. Also, there’s objects about ecologically sustainable development, looking after threatened and endangered species and then most recently an objective for good design. So, I said earlier that the Act is trying to do a lot of things. It’s trying to do even more, so there’s a lot that the court can look at in those merits review decisions. |
| DT: | It certainly is trying to do a lot of things. What is good design in that context? |
| AT:
29:00 | So it’s a great question, and as far as I know it hasn’t been tested in court yet but there’s certainly policies that the Government Architect of New South Wales there’s a policy called Better Placed that sets out good design, and there’s also the state environmental planning policy Design and Place SEPP. I don’t think it’s been released yet, but certainly very close to coming into force. So, there’s more and more documentation, and I guess we’re waiting for a case to see what the court says about that. But yeah, I would say the Government Architect’s Better Placed policy would be the main source you’d be looking at for good design. TIP: Amelia just mentioned the Design and Place SEPP which aims to simplify and consolidate the plan to build sustainable and resilient places and also to ensure good design in NSW. It includes updates to apartment design and residential building sustainability requirements, The Design and Placed SEPP will apply to all precincts, large developments, buildings, infrastructure and public spaces in NSW. The policy isn’t finalised and in place yet but applicants are still encouraged to consider it now for all future development proposals. If you want to learn more about the proposed Design and Placed SEPP, you can check out the NSW Government website. The SEPP is on public exhibition until 28 February 2022 and is open to public comment. |
| DT: 30:00 | You mentioned that one of the instruments that influences good design is a State Environmental Planning Policy. Let’s talk about SEPPs now. The State Environmental Planning Policies affect the sorts of developments that can be explored or proceed in New South Wales. Broadly, what is a State Environmental Planning Policy and what kind of influence can they have on planning? |
| AT:
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33:00 | So there’s a few different types of SEPPs, so as you said, they set out the rules for different things. So, you might have a SEPP for a particular area, so the Sydney Opera House, for example, has its own SEPP that sets its own planning level controls. As the name says, it means it’s state level control. So, it’s something that is seen as beyond something that should be controlled purely by the local council, it’s something that has wider significance, and so we have this higher level. Rather than local government setting out the controls, we have the state government setting the control so places like the Sydney Opera House get their own controls. There are also SEPPs that apply to particular types of development, so a couple of well-known SEPPs people might know if they’ve done any home renovations are the basic SEPP which is about trying to improve environmental performance. So, if you’re going to do a residential development over $50,000, then you need to have your development assessed for water and energy use and you need to get a certificate to say you meet these certain standards. Complying development is another SEPP that I imagine many people would be familiar with, means you don’t have to go through a full development assessment process, you can have a much shorter tick box assessment process. Another one people would know SEPP 65 regulating apartment development and you can speak to any architects in Sydney, they will tell you it’s been fantastic. It’s the reason apartment quality is better in Sydney than it is in Melbourne because we have these extra rules about things like cross-ventilation, natural light, those kinds of rules that improve apartment quality in Sydney. And then you can also have SEPPs that regulate a type of place and a controversial one that I imagine many people would have seen in the news was the koala habitat SEPP that created a bit of debate in the state government so that’s a SEPP that means if you want to do things in land that’s identified as koala habitat, then you have to comply with those rules there. Quite a bit of tension between the National Party and the government over that SEPP recently. TIP: In March 2020, a new SEPP was exhibited that related to development on land that was considered koala habitat. Now, this proposal caused a real rift in the Liberal National Party coalition in NSW, with state Nationals leader, John Barilaro, threatening that the Nationals would leave the Coalition in NSW if the SEPP was approved on the basis that it would negatively affect farmers. Now, the SEPP doesn’t necessarily prohibit the clearing of koala habitat, it requires that you obtain approval to do so but approval isn’t required for state significant development or activities listed in Part 5 of the EPA Act or for land clearing that already requires approval under other legislation. Approval also isn’t required for land less than one hectare. The Koala Habitat SEPP extended the definition of core koala habitat to where koalas have historically been present, rather than requiring evidence that they were currently present as was the case before the SEPP was introduced. The SEPP also aims to streamline the approval process that people who want to clear land have to go through, to make it easier for landowners and also statutorily requires councils to undertake consultation with stakeholders when preparing plans of management relating to koala habitat. To read more about the koala habitat SEPP, check out the UNSW article ‘Koalafications’, great pun by the way, ‘what new environmental laws mean for the survival of the species’. That article includes an interview with our guest today, Amelia. |
| DT: | I suppose the takeaway there is that a SEPP doesn’t necessarily apply statewide. It’s not a term that implies geographical application, it’s a term that implies the level of government which controls its application. |
| AT: 34:00 | Although things like, say, the housing SEPP or BASIX, those kinds of things, they are statewide, so they are saying everywhere in New South Wales you have to have apartments of this minimum standard. So, they apply in different ways. |
| DT:
| Now, as well as SEPPs, we also have Local Environmental Plans in New South Wales (LEPs). Now, how do they interact with SEPPs and what do they cover because I imagine a lot of our listeners, if they have a conveyancing or a SME property practice, will see LEPs every day annexed to contracts of sale but they might not appreciate all of the things that those leads are designed to achieve and implement in terms of the policy perspective. So, what do they do and how they interact with SEPPs? |
| AT:
35:00
36:00
37:00 | So LEPs are the first planning document that most people would interact with. So, they set out the controls for a local area. One of the processes that’s been happening over the last two decades has been a process of streamlining LEPs, SEPPs as well but it used to be that councils could have lots of different LEPs for their area. Now, since 2005, there’s a standard instrument. So, as well as councils having multiple LEPs, they could also have their own specific controls. We now have a lot more standardization about what the controls are, so if you have an R2 residential zoning in one area, it’ll be the same somewhere else. It’s making it much easier for people to understand those rules and also that you have just one LEP per council. There are still some others, so Bondi Junction is an example, a development that spans 2 councils, they have a joint LEP to set the rules for that, but generally you’ll find there’s just a principle LEP for each Council as the main LEP that you would look at and then the main thing that you would look first at is the zoning. So, you’ll be able to find a map where different areas are colored in their different zone and then you can see what kind of development is permissible with consent, simply permitted that you don’t even need consent – so there’s not normally a lot in that category, that would usually be something like home occupations (living in a house) – and then also development in that zone that is prohibited. So, there the three categories of development that you’re looking for in your zones. You can also find things in an LEP like height limits or floor space ratio controls, so what kind of density you can have those kinds of rules. And then your question about how they interact with SEPPs is a great question, and that’s something that has been shifting as part of that streamlining process. So a SEPP will override an LEP. Initially, that wasn’t specified in the Act, that’s something that’s been clarified over time, in a general pattern of state controlling local. So, yeah, if there’s a clash between a SEPP, or if we have some rule about a standard being imposed at the state level, a council has to follow the SEPP but the other shift has been a process of streamlining SEPPs as well as LEPs. So, there used to be a lot more SEPPs and certainly something that the current minister has been doing is trying to reduce the number of SEPPs and one way that they have been doing that is taking provisions out of SEPPs and putting them into the standard LEP. So, for example heritage is something that’s controlled through LEPs. So, even though we have state level heritage listing, the way that it works is councils have to prepare a heritage list and that’s controlled through the LEP. You can see which properties have a heritage protection on them limiting the kinds of things that you can do there. So, yeah, getting rid of SEPPs and just having more in that LEP so that that really becomes the go to document. |
| DT: | So that’s interesting. There’s both a divergence and a convergence happening at the same time. On the one hand, you’ve got greater consolidation or simplification in terms of the LEPs that apply in particular councils, not having more than one per Council, for example, but at the same time you then have more planning matters being addressed through LEPs and therefore being different throughout different Council areas. Is that a fair description? |
| AT:
38:00
39:00 | Yeah, so there’s scope for difference, I mean, obviously a council picks designs that they want. So even though the state government’s limiting designs a council can choose whether it’s going to have a higher density zoning or a lower density zoning. There is some scope to add extra things to a zone. So, each zone, as well as having those three categories of permitted, permissible with consent and prohibited, they also set out the objectives for the zone, which are important for a decision maker deciding whether the development is consistent with those objectives or not and councils can add to those objectives. So, there is some scope there for councils to tailor their LEP to their local needs but certainly it’s been a point of contention that that process of standardisation removing the capacity for councils to have their own planning controls. I find the process really interesting. So I started working at the EDO in 2008, when this process was in its relatively early stages, the standard instrument was introduced in 2005 and so originally I came from Perth, it’s where I first worked in planning and it has always been standardized there, as far as I’m aware, we have a much greater level of standardization and of hierarchy between state level and local level controls. So yeah, it was interesting for me coming to Sydney and going ‘gee, I can see why it’s really confusing to have so much diversity, but I can also see why people like to hold on to their local capacity and are resistant to losing that. |
| DT: | That is interesting, coming in with that outsider’s perspective and seeing the benefits of standardization, I suppose, at a time when that was quite controversial. I was going to ask you the extent to which local governments or local councils can influence the significance of different zones within their LEP, I suppose whether a R2 zoning, for example, would be different in one local council to the next, or whether there’s a degree of similarity between them but it sounds like, except for adding those objectives, there’s really very little scope for changing the significance of that zoning from local council to local council. |
| AT:
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| Yeah, I mean certainly things like floor space ratio or height limits, those sorts of things councils can play with, but yeah, an R2 is going to be pretty similar from one council to the next. TIP: Now as some of you listening probably already know, each Local Government area is divided for planning purposes into a number of smaller areas called “zones”. Zones are used as a way of grouping areas with similar characteristics together and zones are typically based on land uses such as residential, industrial and commercial. The way land is zoned is important because it defines the types of uses that are encouraged, permitted and prohibited in the area. Zones have different policies about development to maintain the diversity and unique character of the area to which they apply and, as Amelia mentioned, differences in zones also dictate development features outside of use like setbacks, height, floorspace ratio and building style. By way of example, in NSW, an R2 zone is a ‘low-density residential’ zone, which typically means a single house per block of land, with a focus on maintaining the locality’s single dwelling character and landscape setting. An R4 zone, however, is considered ‘high-density’, meaning constructing tall apartment complexes is permissible, increasing the density of people able to live in that area. There are some unique zones in the state as well. For example, the office I’m sitting in right now, in the Sydney CBD, is in a B8 zone; B8 zoning denotes a ‘metropolitan status’, and is a unique identification allocated to parts of the Sydney CBD, designed to, according to the legislative instrument, “provide opportunities for an intensity of land uses commensurate with Sydney’s global status.” Fancy. |
| DT:
42:00 | These planning instruments and decision making processes that we’ve been talking about today also interact with a reasonably high level of discretion on the part of the Minister for Planning in terms of the approval of certain developments and planning processes. Can you tell me a little bit about the ministerial discretion that the Minister for Planning can exercise and what influence that has on planning policy in New South Wales because it sounds like there’s a reasonable level of codification in the state and local plans, but at the same time a great deal of discretion at the ministerial level which seem at odds. |
| AT:
43:00
44:00 | Yeah, and there’s been cases challenging that discretion and it’s really been upheld. The minister does have extensive discretion but as you said, there have been efforts to codify. It’s something that’s been noted by ICAC and recently by the Kaldas review of corruption in the New South Wales planning system, recognizing the risks that come with that kind of discretion but there have been codification of how the discretion will be exercised, so delegating certain types to the planning department. It’s very predictable how it will be exercised in most cases, but I guess we do still see examples where it’s not done that way. There was a great episode of Four Corners looking at the approval process for Barangaroo and just how discretionary that was. I recommend your listeners check that out, it’s quite shocking. TIP: Now back in 2010, ICAC reviewed the Planning Minister’s discretion in planning decisions. The Commission released a report called ‘The Exercise of Discretion under Part 3A of the Environmental Planning and Assessment Act 1979 and the State Environmental Planning Policy (Major Development) 2005’. The Planning Assessment Commission was set up in 2008 by the Planning Minister but in 2009, the year that followed, only 7% of planning decisions were referred to the Commission, the rest being decided by the Minister. ICAC recommended the role of the Planning Assessment Commission be ‘enhanced’, including making it the default decision-maker for all private state-significant development applications that exceed local development rules by more than 25%. In 2018, the Planning Assessment Commission became the Independent Planning Commission. The Commission, by whatever name it goes, deals with State Significant Developments by default when: ● There are either 50 or more unique public objections to the application or where ● The Applicant has made a reportable political donations disclosure or where ● The local Council in that area has objected to the application In 2018, Nick Kaldas, Director of Internal Oversight Services for the UN’s Relief Works Agency, was tasked with reviewing decision-making in the NSW planning system. The review made 19 recommendations to improve the regime in the state, including the introduction of an Ethics Unit. The NSW Government accepted all 19 of the recommendations and have since sought to implement those changes. There is still discretion there and I guess reflects how hard it is to codify planning, and I guess the point I made before about how many different objectives there are, that planning is really politics. How we’re going to live together is a political decision, and it’s very difficult to have clear rules that can always be followed that will get us the right outcome. You do need some discretion to work out how we’re going to balance all those competing demands. It’s a difficult one to work out the best solution is. We need some discretion, but we also need to make sure that it will be exercised not to benefit wealthy casino investors. |
| DT: 45:00 | It is an interesting area in the sense that in most fields of regulation, whether at a state or a Commonwealth level, there’s an ability to decide on the policy objectives or decide on the policy settings and then codify to achieve them but as you’ve said. In planning, there are inconsistent objectives or reasonable minds might differ on how those objectives are achieved in a particular development and I suppose, as you said, planning law is politics and there is always going to be a degree of policy setting in the legal decisions. So, it is really interesting in that sense. If someone’s aggrieved by the exercise of ministerial discretion, is there any judicial review process or is there any means by which that decision can be reviewed? |
| AT:
46:00 | There is judicial review but not if it’s just that you don’t like the way that this question has been exercised. There aren’t many judicial review cases that have been successful and certainly you can have a look at the EDO, they do have some successful judicial review cases. Sadly, what often happens is the law then gets changed. You win your judicial review case and then the Minister goes and follows the proper process and does the same thing again or the law gets changed as I said. I guess it’s the limits of what you can do through law and what you have to do through the electoral system. |
| DT: | Well, speaking of that broad level of discretion and power that you might exercise as Minister, if you, Amelia, were the Minister for Planning and Public Spaces tomorrow, what might you change about our current planning and environmental law settings in New South Wales? |
| AT:
47:00 | It’s a really hard question. I should have a ready answer with my dream all cooked up, but I think it’s really, really hard. I think the big thing that I would do is make ESD (Ecologically Sustainable Development) the overarching objective of the EPA Act. So say we’re actually going to have a hierarchy between these different issues and the number one has to be sustainable development. We have to deal with the climate crisis and everything else needs to be measured against that. So yeah, It would be making that overarching objective and then much tougher rules throughout the system to achieve change much faster. There’s no simple fix though. I think it’s really detailed at a lot of levels and also, need to coordinate with others. So what’s happening in transport? What’s happening in infrastructure? What’s happening in housing? All those other things also need to be coordinated, and I think it’s why there’s been a long history of people trying to fix planning, and it’s consistently not very successful. We’ve seen a range of examples, and it’s because planning is quite limited. Whether you approve something or not, it doesn’t really matter if someone’s not developing the thing that we need. It’s politics and it’s hard to fix it just through the planning system. Certainly in terms of small points, I would get rid of parking requirements. I would move from parking minimums to parking maximums. But yeah, there’s a whole lot of other very detailed things, but I think having a clearer process about how you’re balancing those objectives would improve planning. |
| DT: 48:00 | My very limited experience with planning law has always been about parking requirements, so I can definitely have some sympathy with your objective there. Your idea of having a hierarchy or a order of priority in terms of the objectives of the Act, I think, really goes back to the inherent political nature of planning law that we were talking about before. If all of those objectives are equal, then there’s no way to predictably make a decision in individual cases. That decision in individual cases will always be a matter of discretion because there’s no rule, and I suppose creating that hierarchy is a step towards a more codified, more regularized more legal approach to decision making. |
| AT: | Yeah, although I mean still a whole lot of balancing and a whole lot of tradeoffs. |
| DT: | And if any of our listeners, maybe younger lawyers who are new to practice or haven’t even started practicing yet, are looking to get into environmental and planning law work, where would you say they should start? |
| AT:
49:00 | Go and find out what’s involved. Depending on COVID rules, you can go and sit in on the Land Environment Court, you can go and see what’s happening in there. The EDO is a great place to do volunteering. So, I always had interns working with me and there are others in the litigation team and the policy team and there’s lots of great stuff you can do there. The New South Wales Young Lawyers have a really active environmental law group. The Planning Institute of Australia welcomes lawyers as well as planners, and that’s a great place to get involved in understanding developments, potential changes to the law and to be involved, not just in making a submission, but working with others in understanding that and then community groups. So REDwatch, for example, is a group that’s been very involved in the Redfern/Waterloo redevelopments, doing great capacity building work, having public meetings, writing submissions. Getting involved to try to get good outcomes for the community there so you can go and get involved in groups like that and find the group in your local area. The main tip is get involved. Find out what’s happening, make submissions, go to meetings. Get involved. |
| DT: | Well, it sounds like there’s a lot for any of our listeners who are interested to learn more and do more in this area. So, Amelia, thanks so much for joining us on Hearsay today and teaching us all a bit about planning and environmental law. Thank you. |
| AT: | Thanks David. |
| DT: 50:00
51:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Associate Professor Amelia Thorpe from UNSW, for coming on the show. Now, we talked about the built environment and the natural environment on this episode and no matter which one caught your attention more, we’ve got an episode for you to listen to. If you’re interested in learning more about how the law manages our use of high density residential areas, our episode on strata with Samantha Saw from Spears Ryan might be the one for you or if you want more content on the intersection between the law and wildlife, or maybe just some more animal puns, listen to Paw Regulation, our episode on animal law in Australia. Now, as you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim your CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay, including the CPD rules in your state, can be found on our website. Hearsay the Legal Podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more on our website and, if you’re a subscriber, we’ll let you know by email whenever we release a new episode. Oh, and by the way, our free trial episodes are available on Apple Podcasts and on Spotify, so if you like us and you haven’t done it already, give us a rating on your preferred platform and maybe tell a friend to listen to an episode too. Thanks for listening and I’ll see you next time.
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