The Capriciousness of Australian Planning Law: Zoning Objectives in NSW as a Case Study

Abstract

This article considers the fickleness of application of the NSW land use planning system which, like other Australian jurisdictions, deals with 'command and control' of development proposals as they come forward. The nub of the regulation is zoning. As a case study, the article focuses on zoning objectives in statutory-based plans: their emergence, their haphazard development and impending downfall. Legal review of plans and decisions has a substantial and potentially negative effect on planning practice. A substantial part of the narrative relies on court judgments. There is also the problem of poorly contrived plans that invite legal challenge.

Cutting red tape or cutting local capacity? Responses by local government planners to NSW planning changes

“…You've got to fit a limited range of definitions and zones. (Outer-ring LGA) While the adoption of standard zoning and development definitions is fundamental to the development of a standard tool, the majority of officers interviewed argue that the proposed definitions do not easily align with those currently being used in their area Á resulting in a loss of institutional capacity and planning knowledge developed over many years (Kelly and Smith, 2008) Á or adequately cover the diverse nature of their LGA:…”

“…The legal ramifications of the new system are raised with suggestions that the new definitions and zones create new areas of case law that require considerable time before legal foundations are established (Kelly and Smith, 2008). A number of interviewees suggest that the new framework could experience significant modifications (partly in response to legal challenges) which will challenge the universal nature of definitions and lead to a return to ad hoc localised planning tools:…”

Local government and coastal damage: confusion, potential and dreams

“…It is a modern version of the IDO mentioned earlier. Its aim is to increase efficiency while turning plan-makers into technical copycats and choking ingenuity (Kelly and Smith, 2008). And it has not stopped there.…”

“…In NSW, all LEPs must contain specialist provisions imposed by the State Government via the “template”, There are objectives for each zone, which appear impressive but have scant effect (Kelly and Smith, 2008). There are other matters that the decision-maker, usually a council, must merely “consider”.…”

“…One key facet is that each of the “four areas” is given “management objectives” under the CM Act. This might draw some discomfort due to the relative weakness of zoning objectives in LEPs under the EPA Act (Kelly and Smith, 2008). But here, the management objectives are far sturdier: a council “must give effect” to them for each coastal management area (SEPP CM, cl 14(3)(b)).…”