reforming building & planning laws · the association operates offices in 23 centres around the...

Submission to the

Department of Planning & Environment

Planning Legislation Updates

March 2017

Reforming Building & Planning Laws

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ABOUT THE HOUSING INDUSTRY ASSOCIATION................................................................................................................ I

1.0 INTRODUCTION ....................................................................................................................................................... 1

2.0 ENHANCING COMMUNITY PARTICIPATION ............................................................................................................. 1

2.1 COMMUNITY PARTICIPATION PLANS ....................................................................................................................................... 1 2.2 STATEMENT OF REASONS FOR DECISION ............................................................................................................................ 2

3.0 COMPLETING THE STRATEGIC PLANNING FRAMEWORK .......................................................................................... 2

3.1 LOCAL STRATEGIC PLANNING STATEMENTS ........................................................................................................................ 2 3.2 REGULAR LEP CHECKS .................................................................................................................................................. 2 3.3 STANDARD DCP FORMAT .............................................................................................................................................. 2 3.4 OPTIONAL MODEL DCP PROVISIONS ............................................................................................................................... 3

4.0 BETTER PROCESSES FOR LOCAL DEVELOPMENT ....................................................................................................... 3

4.1 EARLY CONSULTATION WITH NEIGHBOURS ....................................................................................................................... 3 4.2 STEP-IN POWERS TO ENSURE TIMELY DECISIONS ............................................................................................................... 3 4.3 TRANSPARENT DIGITAL PLATFORM .................................................................................................................................. 3 4.4 ONGOING REVIEW OF CONCURRENCES AND REFERRALS ..................................................................................................... 3 4.5 STRENGTHENING THE DETERRENCE OF UNAUTHORISED WORKS ........................................................................................... 4 4.6 MODIFICATIONS TO TAKE ACCOUNT REASONS FOR ORIGINAL CONSENT ................................................................................ 4 4.7 ONGOING WORK TO IMPROVE COMPLYING DEVELOPMENT PATHWAY .................................................................................. 4 4.8 ENSURING THE DEVELOPMENT MEETS THE STANDARDS ...................................................................................................... 4 4.9 IMPROVED INFORMATION FOR COUNCILS AND NEIGHBOURS ............................................................................................... 5 4.10 LIMIT SOME SENSITIVE CATEGORIES TO COUNCIL CERTIFIERS ............................................................................................... 5 4.11 POWERS AND RESOURCES FOR COUNCILS ......................................................................................................................... 5 4.12 LEVELLING THE PLAYING FIELD BETWEEN COMPLYING DEVELOPMENT AND DEVELOPMENT APPLICATIONS ................................... 5

Unregistered Lots ............................................................................................................................................................. 5 Planning Agreements ...................................................................................................................................................... 6 Special Infrastructure Contributions ................................................................................................................................ 6

5.0 BETTER PROCESSES FOR STATE SIGNIFICANT DEVELOPMENT .................................................................................. 7

6.0 FACILITATING INFRASTRUCTURE DELIVERY ............................................................................................................. 7

6.1 CONCURRENCE FOR PART 5 ACTIVITIES ............................................................................................................................ 7

7.0 FAIR AND CONSISTENT PLANNING AGREEMENTS .................................................................................................... 7

7.1 CLEARER DIRECTIONS TO COUNCILS ................................................................................................................................. 7 7.2 OTHER IMPROVEMENTS TO INFRASTRUCTURE CONTRIBUTIONS ............................................................................................. 7

8.0 CONFIDENCE IN DECISION-MAKING ......................................................................................................................... 8

8.1 CONSISTENT PROVISIONS FOR LOCAL PLANNING PANELS ..................................................................................................... 8 8.2 POWER TO DIRECT THAT A LOCAL PLANNING PANEL MUST MAKE DETERMINATIONS ................................................................ 8 8.3 ENSURING DELEGATION TO COUNCIL STAFF ...................................................................................................................... 8 8.2 REFRESHED THRESHOLDS FOR REGIONAL DEVELOPMENT ..................................................................................................... 8 8.3 EXPANDED SCOPE FOR INTERNAL REVIEW ......................................................................................................................... 8

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9.0 CLEARER BUILDING PROVISIONS ............................................................................................................................. 9

9.1 SIMPLIFIED AND CONSOLIDATED BUILDING PROVISIONS ...................................................................................................... 9 Functions of certifiers ...................................................................................................................................................... 9 Requirements before building work commences ............................................................................................................. 9 Restriction on issue of subdivison works certificate ........................................................................................................ 9 Restriction on issue of subdivision certificates ................................................................................................................ 9

9.2 CONSISTENCY WITH THE DEVELOPMENT APPROVAL ............................................................................................................ 9 9.3 TRANSFER OF RESPONSIBILITY FOR KEY BUILDING PROVISIONS TO THE MINISTER FOR INNOVATION AND BETTER REGULATION ............... 10

10.0 ELEVATING THE ROLE OF DESIGN............................................................................................................................ 10

10.1 A NEW DESIGN OBJECT .............................................................................................................................................. 10

11.0 ENHANCING THE ENFORCEMENT TOOLKIT ............................................................................................................. 10

12.0 OTHER CHANGES TO LEGISLATION.......................................................................................................................... 10

13.0 CONCLUSION ........................................................................................................................................................... 11

Housing Industry Association contact: Troy Loveday Assistant Director, Residential Development Housing Industry Association 4 Byfield Street, MACQUARIE PARK NSW 2113 Phone: 02 9978 3342 Email: [email protected]

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ABOUT THE HOUSING INDUSTRY ASSOCIATION

The Housing Industry Association (HIA) is Australia’s only national industry association representing the interests of the residential building industry, including new home builders, renovators, trade contractors, land developers, related building professionals, and suppliers and manufacturers of building products. As the voice of the industry, HIA represents some 40,000 member businesses throughout Australia. The residential building industry includes land development, detached home construction, home renovations, low/medium-density housing, high-rise apartment buildings and building product manufacturing. HIA members comprise a diversity of residential builders, including the Housing 100 volume builders, small to medium builders and renovators, residential developers, trade contractors, major building product manufacturers and suppliers and consultants to the industry. HIA members construct over 85 per cent of the nation’s new building stock. HIA exists to service the businesses it represents, lobby for the best possible business environment for the building industry and to encourage a responsible and quality driven, affordable residential building development industry. HIA’s mission is to:

“promote policies and provide services which enhance our members’ business practices, products and profitability, consistent with the highest standards of professional and commercial conduct.”

The residential building industry is one of Australia’s most dynamic, innovative and efficient service industries and is a key driver of the Australian economy. The residential building industry has a wide reach into manufacturing, supply, and retail sectors. The aggregate residential industry contribution to the Australian economy is over $150 billion per annum, with over one million employees in building and construction, tens of thousands of small businesses, and over 200,000 sub-contractors reliant on the industry for their livelihood. HIA develops and advocates policy on behalf of members to further advance new home building and renovating, enabling members to provide affordable and appropriate housing to the growing Australian population. New policy is generated through a grassroots process that starts with local and regional committees before progressing to the National Policy Congress by which time it has passed through almost 1,000 sets of hands. Policy development is supported by an ongoing process of collecting and analysing data, forecasting, and providing industry data and insights for members, the general public and on a contract basis. The association operates offices in 23 centres around the nation providing a wide range of advocacy, business support including services and products to members, technical and compliance advice, training services, contracts and stationary, industry awards for excellence, and member only discounts on goods and services.

of 11 | Planning Legislation Updates

1.0 INTRODUCTION

The Housing Industry Association (HIA) welcomes the opportunity to provide comments on the proposed amendments to the Environmental Planning and Assessment Act 1979 (the Act) forming a substantial component of the “Planning Legislation Updates” package released by the former Minister for Planning on 9 January 2017. We have had the opportunity to review the summary of proposals, bill guide, public consultation draft bill and stakeholder feedback report described by the former Minister for Planning as “red tape-busting reforms” intended to boost housing supply. Whilst a few select initiatives will assist to improve housing supply, the majority of the changes announced will do very little or in fact hinder the construction of new housing. There are proposals included in the package that will add further costs to newly constructed housing and give local government more ability to regulate the housing construction sector, which is already a highly over regulated sector of the NSW economy. The media release issued by the former Minister for Planning at the time of release of the proposed amendments stated that the “NSW Government is determined to do everything it can, including making the planning system more efficient, to ensure housing supply gets to homebuyers fast”. HIA is less certain that these reforms will deliver the improvements in housing supply predicted. We think that more needs to be done to reduce red tape and eliminate the cost burden on the housing sector to drive supply, much of which is hidden within the administration processes and operations of local government and state authorities, rather than in the detail of the legislation. The Government’s proposals cover a very broad range of areas across the planning system and include legislative amendments, other reforms foreshadowed to be delivered by Regulation amendment and current reform initiatives underway. Whilst HIA supports the continuation of the reforms initially proposed in the 2013 White Paper that were intended to be implemented through the lapsed Planning Bill 2013, the current proposals introduce measures that at face value will add further red tape and cost to the planning process for new house construction. We have structured our submission to follow the ten policy themes set out in the Summary of Proposals document.

2.0 ENHANCING COMMUNITY PARTICIPATION

2.1 COMMUNITY PARTICIPATION PLANS

HIA supports the concept of Community Participation Plans being prepared by each planning authority under the Act. Community Participation Plans are intended to explain how the planning authority, in most cases the local council, will engage with the community in plan-making and development decisions. The requirement for each local council to develop a Community Plan will provide local communities with better certainty on the processes and procedures that will apply to plan making and development decisions affecting their area. A specific concern that stems from this proposal is the new minimum public exhibition period for development applications. It is proposed that a 14 day minimum exhibition period apply to all development applications (apart from Complying Development, State significant development and designated development). Some local councils currently exempt certain types of development from notification/exhibition requirements in their Development Control Plans (DCPs) for low impact and minor types of development, such as ancillary residential development including small additions, pergolas, swimming pools and outbuildings that meet certain specified criteria. Building work that is entirely internal to the property therefore it has been common


practice by most local councils to exempt these types of applications from the need for public notification or exhibition requirements. This practice is common in greenfield areas where there few or no existing residents and there is an expectation that new houses will be built. This is also the case for display homes constructed in urban release areas which typically are isolated from existing communities and clearly have been given exemption from public notification for this reason. HIA is opposed to a mandatory minimum public exhibition period for all development applications as we believe the current arrangements provide flexibility for local councils to determine the type of proposals that should be notified based on the circumstances of the local area and the likely impact of that type of development on adjoining property owners.

2.2 STATEMENT OF REASONS FOR DECISION

HIA supports the requirement for decision makers to provide reasons for their decisions. This requirement will equally serve members of the local community affected by proposals as it will the applicants who must try to understand the reasons for certain decisions made by local councils and planning panels.

3.0 COMPLETING THE STRATEGIC PLANNING FRAMEWORK

3.1 LOCAL STRATEGIC PLANNING STATEMENTS

HIA supports the requirements for local councils to prepare local strategic planning statements that will provide communities with the strategic context behind the planning controls set out in the Local Environmental Plan (LEP). It is important that communities understand the rationale behind the process of setting zoning controls and development controls. These plans should clearly articulate opportunities for urban renewal and growth and where areas should be preserved for heritage conservation. Linking these documents to the relevant District Plan will help communities to gain insight into the bigger picture planning challenges of planning for housing and employment growth across metropolitan Sydney.

3.2 REGULAR LEP CHECKS

HIA supports the proposal for local councils to review their planning controls against a set of prescribed criteria every 5 years as set out in Schedule 3.1 [13] of the draft bill. The LEP check will trigger the requirement for a local council to review its entire LEP or major components of it. Regular reviews of LEPs in high growth areas will reduce the need for land owner initiated spot rezonings.

3.3 STANDARD DCP FORMAT

HIA supports the proposal to require DCPs prepared by local councils to follow a standard template as indicated in Schedule 3.1 [17] of the draft bill. This will have the benefit of allowing consistent interpretation of terms to be applied across the State and for DCP documents to be accessible from the Planning Portal.


3.4 OPTIONAL MODEL DCP PROVISIONS

HIA welcomes the proposal to develop a suite of standard DCP provisions. Given there are over 400 DCPs across the State, considerable negotiation with local government and industry stakeholders will be required to refine those clauses into a simple set of DCP model provisions. HIA, on behalf of our members, would welcome any invitation to participate in any working group established to review standard DCP clauses which affect residential development.

4.0 BETTER PROCESSES FOR LOCAL DEVELOPMENT

4.1 EARLY CONSULTATION WITH NEIGHBOURS

The proposals include a new requirement that will mandate some form of early consultation with neighbours before a development application is submitted to the local council. At this stage, the legislative process provides the power for the regulations to require applicants to undertake community consultation in relation to their development proposal. There may be some merit in this proposal but the detail regarding its implementation will require further consideration once those details are developed. HIA would welcome the opportunity to provide further comments on the likely consultation requirements and the types of developments where such a requirement may be mandated.

4.2 STEP-IN POWERS TO ENSURE TIMELY DECISIONS

HIA welcomes the proposal intended to overcome prolonged delays in the development assessment system by granting to the Secretary of the Department of Planning and Environment (Planning Secretary) reserve powers to step-in to the role of State agencies where they have an obligation to provide advice, concurrence or general terms of approval for local development applications where a local council is the consent authority. These powers are described in Schedule 4.1 [12] and indicate the types of scenarios where the Planning Secretary may act.

4.3 TRANSPARENT DIGITAL PLATFORM

HIA supports the development of a digital system within the Planning Portal to digitise the steps involved with processing of integrated development applications including payments, information sharing, data collection, notifications during each stage of the process and publication of final decisions. The advantages gained from using the Planning Portal to manage the integrated development and concurrence functions of State agencies should improve development application processing times. However resourcing of State agencies to be able to adequately undertake the referral process in a timely manner is critical to establishing real improvements in these processes.

4.4 ONGOING REVIEW OF CONCURRENCES AND REFERRALS

HIA supports the Department undertaking a whole-of-government review of review of referrals and concurrences to identify unnecessary requirements and alternatives tools to assess less complex impacts. We support the rationalisation and removal of redundant concurrences and referrals that hinder the timely and efficient assessment of development proposals. As part of this process, there would be merit in reviewing how local governments and some agencies are using the current powers and whether referrals are being made in circumstances where they are not required. It is clear in some areas that referrals are being made by local councils to delegate the decision making process, despite having full authority to determine an application within a mandatory referral.


4.5 STRENGTHENING THE DETERRENCE OF UNAUTHORISED WORKS

HIA does not support the proposal to prevent local councils or other planning authorities from approving modification applications in respect of works already completed. In situations where an applicant carries out unauthorised works in contravention of a valid development consent, the local council or another planning authority, including the Land and Environment Court, should be provided with a process to assess the environmental impacts of those works and if necessary impose additional conditions of consent to mitigate impacts. Unless planning authorities have access to approve modifications under Section 96 of the Act, the options available to them will be limited to only issuing building certificates. This only ‘regularises’ the structure and has no bearing on the permissibility of the land use. It would be inappropriate for the legislation to create a system whereby any unauthorised, yet permitted land use, could not be authorised in some manner, with due consideration by the relevant authority. If this power is removed, then it is assumed local government and the Court are being left with no option but to request a cessation of an unauthorised use and demolition of any structures in all circumstances. Clearly this could not be the intended outcome and therefore more information on the purpose of this amendment may be warranted.

4.6 MODIFICATIONS TO TAKE ACCOUNT REASONS FOR ORIGINAL CONSENT

HIA supports the proposal that will require planning authorities, when considering a modification application, to consider the statement of reasons for the original consent. This amendment will ensure modification applications do not ignore the original reasons for approval of the development consent and aid in the better understanding of the modification process.

4.7 ONGOING WORK TO IMPROVE COMPLYING DEVELOPMENT PATHWAY

HIA supports initiatives intended to improve the attractiveness of the complying development pathway. Developments including improvements to the Simplified Housing Code, development of the Inland Code, new standards for greenfield areas and the release of the draft Medium Density Housing Code and Medium Density Design Guide. HIA welcomes these projects and anticipates the timely finalisation of these draft Codes to allow for the new controls to be taken up as soon as possible.

4.8 ENSURING THE DEVELOPMENT MEETS THE STANDARDS

HIA has reviewed the proposal to amend the Act to make it clear that a Complying Development Certificate (CDC) that does not comply with the relevant standards in the State policy, can be declared invalid. This is intended to overcome a scenario where a CDC may approve development that does not comply with relevant sections of the Code but the Court has no power to declare the CDC invalid. This will have major consequences on the land owner who must endure the consequences brought on by the accredited certifier. HIA would recommend to the Department that it consider offering opportunities for further education and training to private certifiers as a preventative measure to avoid these situations arising. We would also encourage the Department to prepare and make available guidance material to the public and building sector regarding this situation and options regarding what to do if a CDC is declared invalid.


4.9 IMPROVED INFORMATION FOR COUNCILS AND NEIGHBOURS

HIA does not support this proposal due to the excessive red-tape burden it will place on private certifiers. The notification requirements proposed (at time of lodgement, prior to issue of a CDC and after issue of a CDC) is unreasonable and may raise expectations in the community that comments are being sought with an ability for some redress to occur. This action would introduce another layer of unnecessary red tape and administration. Should the Government decide to proceed with this proposal it should delay its implementation until all neighbours are able to access plans and certificates using the Planning Portal in all local government areas of NSW.

4.10 LIMIT SOME SENSITIVE CATEGORIES TO COUNCIL CERTIFIERS

HIA does not support this proposal as it represents a significant roll back of private certification system which has existing for nearly 20 years in NSW. The package of documents does not describe the sensitive categories likely to be subject to this limitation, but we believe that development proposed under the Medium Density Housing Code could be under consideration by the Department. We accept that there may be a need for safeguards to be developed for new categories of complying development which have the potential to impact on a neighbourhood more broadly than simply the adjoining owners. However complying development codes should continue to be focused on offering an applicant a clear and measurable set of design requirements and supporting private and council certifiers to assess applications. If there is a view that the advice of a town planner in making a decision on the issue a CDC for sensitive categories of development is warranted, then there should be a broader debate about the opportunity to encourage private planning professionals to enter into the accreditation system as originally intended in 1998 to support the work of building certifiers.

4.11 POWERS AND RESOURCES FOR COUNCILS

HIA does not support the proposal to introduce a compliance levy on complying development certificate applications (issued both by private or council certifiers) and potentially development applications also. The documents in the package indicate that revenue from the levy will be remitted to local councils to resource investigation and enforcement activity under the Act. Other options for local councils to fund their enforcement activities include the use of compliance cost notices under Section 121CA of the Act which can be issued by a local council when it issues a compliance Order under the Act. Compliance Cost Notice allows the local council to seek all reasonable costs and expenses incurred with investigation, monitoring and enforcement activity associated with the issuing of the breach notice. Local councils therefore have adequate powers to recover costs of compliance activity without the need to levy a broad across the board charge on all development activity.

4.12 LEVELLING THE PLAYING FIELD BETWEEN COMPLYING DEVELOPMENT AND DEVELOPMENT

APPLICATIONS

Unregistered Lots

We support the proposal to allow for complying development certificates to be issued over unregistered lots as this has it has been a major issue affecting many of our members in greenfield areas. The proposal to overcome this obstacle involves the amendment of the Act to allow for deferred commencement of a complying development certificate in certain circumstances. This initiative to be implemented by changes outlined in Schedule 4.1 [8] of the draft bill will enable a complying development certificate to be issued


subject to a condition that the certificate is not to operate until the applicant satisfies the consent authority regarding the matter specified in the condition. HIA anticipates the intention of this change will be for local councils and private certifiers to issue a deferred commencement CDC with a condition that the certificate does not operate until the plan of subdivision has been registered and title to the lot registered. Following the registration of the plan of subdivision, evidence of the registration is provided to the approval body which would subsequently provide notice of that the deferred commencement condition has been satisfied.

Planning Agreements

HIA is unable to understand why the Act needs to be amended to accommodate Planning Agreements for complying development certificates. We have made the assumption that the need for a planning agreement would arise from a satisfactory arrangements clause within an environmental planning instrument. It is unclear from the exhibition package the type or category of development that would trigger a requirement for a planning agreement. The provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 currently permit the erection of new industrial buildings (up to 20,000sqm in floor area) in certain business and industrial zones. We have assumed that this could be one of a small number of existing complying development types that might trigger the need for a planning agreement. Beyond the scenario described above, complying development is typically minor low impact development and unlikely to generate the need for the negotiation of a planning agreement. HIA would welcome further explanation from the Department regarding any future types or categories of complying development that could warrant the need for a planning agreement to be executed between the land owner and the planning authority.

Special Infrastructure Contributions

HIA does not support the proposal to extend the application of Special Infrastructure Contribution (SIC) levies to complying development certificates. We have previously voiced our concerns in respect of these levies with the Department arguing that we believe they place an unfair financial burden on new homebuyers. The imposition of upfront levies on new homebuyers is discriminatory, inflationary and erodes housing affordability. These levies are a direct tax on new home purchases and we consider them to be an unfair and inequitable option for the delivery of State infrastructure which benefits the broader population. Currently SIC levies apply in certain parts of Western Sydney, Wyong and Warnervale where extensive urban release areas are progressively being developed for new housing. The SIC levies are applied at the time of subdivision by the consent authority and payable prior to release of the Subdivision Certificate. Having regard to the current categories of development which complying development applies, the basis for extending SIC levies to those development types is unclear. It is difficult to contemplate a scenario where a CDC is captured by a SIC levy, yet the levy has not been paid on the original allotment for that same purpose.


5.0 BETTER PROCESSES FOR STATE SIGNIFICANT DEVELOPMENT

As housing construction and the development of new urban release areas are not State significant development categories, HIA generally does not have a view on the proposals relating to this development category. However in respect to the discontinuation of the former Part 3A of the Act, we note the proposed discontinuation of the transitional arrangements and welcome the preservation of ongoing effect of approved Part 3A concept plans where they relate to the supply of new housing. There are many Part 3A concept plans and projects relating to residential subdivision that still be current due to the long lead-in times to commence subdivision works. There needs to be clear guidance to the applicants for these projects regarding the pathways available for future modifications if required once the current transitional arrangements are no longer available.

6.0 FACILITATING INFRASTRUCTURE DELIVERY

6.1 CONCURRENCE FOR PART 5 ACTIVITIES

HIA notes the proposal to provide additional legislative protection to identified infrastructure corridors to include activities that currently fall into Part 5 of the Environmental Planning and Assessment Act. We support initiatives that provide greater certainty and clarity around the operation of the planning system and restrictions on land use.

7.0 FAIR AND CONSISTENT PLANNING AGREEMENTS

7.1 CLEARER DIRECTIONS TO COUNCILS

HIA is supportive of the proposal relating to the policy framework for planning agreements. We encourage steps by the government to reign in inappropriate action by some councils when negotiating planning agreements. We endorse the proposal to grant the Minister the ability to issue directions to planning authorities relating to the procedures to be followed when negotiation a planning agreement (as set out in Schedule 7.1 [2] of the draft bill).

7.2 OTHER IMPROVEMENTS TO INFRASTRUCTURE CONTRIBUTIONS

HIA does not support the further extension of SIC levies as indicated in the exhibition package. We have previously indicated to the Department that we regard the imposition of up-front levies on new home buyers for the provision of community infrastructure that benefits a broader number of home owners than just those that pay the levy as discriminatory, inflationary and a major contributory factor to the erosion of housing affordability in NSW. HIA’s position regarding SIC levies is that they are a direct tax on new home construction and represent an unfair and inequitable option for the delivery of State infrastructure which also benefits the wider community.


8.0 CONFIDENCE IN DECISION-MAKING

8.1 CONSISTENT PROVISIONS FOR LOCAL PLANNING PANELS

HIA supports the proposals aimed to deliver consistency regarding the operation of Independent Hearing and Assessment Panels (IHAP) constituted by local councils. We support the replacement of the current provisions with updated provisions for the constitution of Local Planning Panels as set out in Schedule 2.1 [1] of the draft bill.

8.2 POWER TO DIRECT THAT A LOCAL PLANNING PANEL MUST MAKE DETERMINATIONS

HIA supports the proposal that will give the Minister power to direct a local council to establish local planning panels to determine development applications, replacing current Ministerial powers to appoint a planning administrator or panel to exercise the planning functions of a local council. Feedback provided by our members on the performance of local councils indicates a very high level of delay in the assessment and determination of development applications. We welcome these steps to establish a clear process for the Minister to take action in this area.

8.3 ENSURING DELEGATION TO COUNCIL STAFF

HIA supports the proposal which will give the Minister new powers to require more planning functions to be carried out by Council staff under instruments of delegation. The information provided in the exhibition package indicates that local councils with high levels of delegation have an average processing time of 82 days and local councils with low levels of delegation have an average processing time of 106 days. We do note that it is not expected to be a power that will be frequently applied because most local councils have arrangements in place for staff to deal with planning applications under delegation. For the few local councils where the majority of planning applications are determined by the elected councils themselves, this measure will reduce delays and has the potential to take local politics out of the decision making process.

8.2 REFRESHED THRESHOLDS FOR REGIONAL DEVELOPMENT

HIA understands the proposal involves a refresh of the threshold for regional development which were established in 2011. Currently, the key threshold that applies to development applications is a capital investment value of $20 million. It is proposed this be increased to $30 million. HIA would only support this proposal where there is strong evidence that local planning panels are functioning well both in terms of expertise and independence from councillor interference. HIA would welcome further industry consultation on this measure before any decision is made to increase the thresholds.

8.3 EXPANDED SCOPE FOR INTERNAL REVIEW

HIA supports the proposal to extend the use of internal reviews to other categories of development, including Integrated Development which to date has been excluded from the internal review process under Section 82A of the Act.


9.0 CLEARER BUILDING PROVISIONS

9.1 SIMPLIFIED AND CONSOLIDATED BUILDING PROVISIONS

HIA welcomes the consolidation of the building regulation matters within the new Part 6 of the Act as proposed in Schedule 6 of the draft bill. We have considered the package of exhibition materials and provide the following comments:

Functions of certifiers

We note the creation of a new category of certificate for subdivision works that at present operate as construction certificates. HIA supports the change in name for this type of certificate. However having regard to Section 81A(3) of the Act, an accredited certifier is permitted to issue construction certificates and inspect subdivision works. Accredited certifiers are restricted from being appointed as Principal Certifying Authorities (PCA) for subdivision work by virtue of Section 109E(2). Under the changes proposed by Schedule 6.1 of the draft bill, the new section 6.5(2) of the Act will restrict an accredited certifier from having a role to issue certificates for these works or carry out inspections of subdivision works. We have formed this view on the basis that the current restriction upon accredited certifiers from being appointed as a principal certifying authority for a subdivision will be retained. HIA does not support this change on the basis that we see it as a fundamental rolling back of private certification which has operated in NSW for almost 20 years. It is hoped this interpretation is an error in drafting and that the only intention in adjusting the name of a construction certificate for subdivision work is to improve clarity in the operation of the legislation and not to alter the current operation of the legislation for subdivision works.

Requirements before building work commences

Section 6.6 of the draft bill provides information regarding what requirements apply before building work commences. For the purpose of avoiding doubt, this section should state that a construction certificate is required before building work can commence. We note this matter is addressed in section 6.7 but we believe it should be included in section 6.6.

Restriction on issue of subdivison works certificate

Section 6.1 of the draft bill provides the matters that must be satisfied prior to the release of a subdivision works certificate. We are unaware of the trigger for a long service levy payment under the Building and Construction Industry Long Service Payments Act 1986 for subdivision works. As these works do not involve the construction of any building such a payment is unlikely to be required.

Restriction on issue of subdivision certificates

Section 6.15 of the draft bill lists the preconditions for issue of a subdivision certificate, including at 6.15(1)(b) a development consent that is in force with respect to the subdivision. Then at section 6.15(1)(e) any condition which has deferred the operation of the consent, the condition must have been satisfied and the development consent can operate. As this is the same as the requirement that the consent must be in force, it may an unnecessary duplication.

9.2 CONSISTENCY WITH THE DEVELOPMENT APPROVAL

HIA notes the proposal to change the Act requiring all construction certificates issued to be consistent with the respective development consent and allow the Land and Environment Court to declare a construction certificate invalid if it is inconsistent with the consent. We agree that a construction certificate is not an appropriate mechanism to modify the design and/or appearance of part or whole of a building or structure.


9.3 TRANSFER OF RESPONSIBILITY FOR KEY BUILDING PROVISIONS TO THE MINISTER FOR INNOVATION

AND BETTER REGULATION

HIA understands that for some time the Government has intended to transfer ministerial responsibility for building related matters to the Minister for Innovation and Better Regulation. We do not support this aspect of the proposal being implemented at this stage. This has been on the agenda since at least 2015 when the Minister for Innovation and Better Regulation took on responsibility for the Building Professionals Act 2005. This was in addition to the current responsibility for the Home Building Act 1989 which have been under the control of the Minister for Fair Trading for decades. Following the Government announcement of the appointment of a Minister for Housing and the elevation of housing as a key portfolio area within the Government, the removal of key housing legislation and regulation from that cluster should be re-evaluated. HIA requests further consultation with industry stakeholders before it proceeds with the transfer of responsibility for building regulation from the Minister for Planning. These responsibilities should be allocated to an Assistant Minister for Planning within the Planning and Environment cluster.

10.0 ELEVATING THE ROLE OF DESIGN

10.1 A NEW DESIGN OBJECT

HIA has considered the proposal seeking to include good design in the built environment within the objects of the Act on the basis that the initiatives to achieve this outcome are reasonable. We support the intention of design related initiatives such as State Environmental Planning Policy No 65 and the Apartment Design Guide, however, we would encourage more consideration of affordability when considering the introduction of design controls for apartments and other types of medium density development. We would not support the extension of design related controls into the detached dwelling house segment of the sector due to the cost implications and adverse impact on housing affordability. The current Housing Codes offer an appropriate set of design controls which are measurable and offer certainty for home owners and certifiers.

11.0 ENHANCING THE ENFORCEMENT TOOLKIT

HIA has reviewed the proposal involving the take up of enforceable undertakings to improve compliance outcomes under the Act. We welcome the Department’s intention to provide guidance material for the public to assist with understanding this new arrangement.

12.0 OTHER CHANGES TO LEGISLATION

HIA has reviewed the draft bill and identified the following matters for further consideration:

• Currently the objects of the Act include encouraging ecologically sustainable development. The principles of ESD were added to the objects of the Act in the 1998 legislative amendments. The current proposed amendment should seek to achieve sustainable development outcomes by integrating relevant economic, environmental and social considerations in decision-making actions, rather than solely focusing on ecologically sustainable development.

• Schedule 1 of the draft bill contains an amended object which seeks the timely delivery of housing opportunities (including housing choice and affordable housing). HIA is extremely pleased to see housing supply as a concept within the objects of the Act, however it would be preferable to avoid confusion with the use of the term ‘affordable housing’ which is a specific type of housing stokc, and use the more appropriate term ‘housing affordability’ in this object.


• Schedule 1 of the draft bill proposes the omission of six subsections below section 4. Why has subsection 6A not been omitted? If it is to be retained, should “however” be deleted?

• The draft bill omits the concept of “development without consent” but retained “exempt development”. The reason for this change is not explained.

• Schedule 2 of the draft bill implements changes to the current Planning Assessment Commission which is to be renamed the Independent Planning Commission. The package does not explain why the commission is not subject to the control or direction of the Minister.

• Schedule 4 of the draft bill proposes a condition relating to financial assurance. The exhibition package does not provide adequate details regarding the Government’s intention regarding this section and how it is intended to operate. We suggest that further information be provided regarding how such this section should be interpreted by consent authorities and how it will be implemented through development consents.

• Schedule 8 of the draft bill proposes that a notice of development consent will operate from the date it is registered on the NSW Planning Portal. Currently Section 83 of the Act provides that a notice of development consent operates from the date it is endorsed/issued by the consent authority. There has not been adequate justification provided in the exhibition package for this change. In particular could there be a delay in uploading a notice of development consent to the portal which potentially could delay the issue of a construction certificate. A suggests that the Department review the consequences of this change and consider if the change is warranted.

13.0 CONCLUSION

HIA acknowledges that the Planning Legislation Updates have been progressively developed over more than 12 months and originate from initiatives contained in the 2013 White Paper and Planning Bill. We now have an acute housing affordability issue in NSW which can only be solved by continuation of the current record levels of supply. HIA has been open in supporting the many initiatives that the Government has introduced to improve housing supply in recent years and we look forward to these continuing. It is now critical that the delivery of sufficient homes to meet the annual demand, and assist in reducing the backlog of pent up demand, year on year, be supported. It is for this reason that HIA does not support a number of the measures in the package that are purported to build community confidence in the planning system yet place additional costs on housing construction and increase the delays in the planning system. We request the Department review the proposals having regard to their regulatory impact on housing supply and affordability. HIA looks forward to continued engagement with the Department to finalise these amendments and ultimately provide feedback from our industry members regarding any issues with their implementation.

reforming building & planning laws · the association operates offices in 23 centres around the...

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