ARCH7004
Planning & Development Control
Module 1
Conceptual Planning Issues and Constraints
1.0 Introduction
This Unit (Planning and Development Control) is designed for those who are seeking to advance their knowledge of the planning system in their Australian jurisdictions and is specifically oriented towards the bushfire practitioner and the building surveyor.
Planning and development control practice is relevant to both groups as their work will often see the intersection of building approvals and that of the planning system. There is often confusion, especially in some jurisdictions, as to why these interactions are of importance.
To illustrate much of the relationship between planning and building processes, we will use bushfire and other natural hazards as a form of case study. It is clear that there has been a historical mismatch between planning objectives and those of bushfire practitioners in the achievement of community safety goals. In many cases, it has been left to the building system to resolve this dilemma and frankly it cannot be left to the building system alone to resolve the inherent conflicts between community safety and residential development.
Throughout this subject we will use the NSW Planning system as a case study for our learning. The planning system in NSW has undergone ongoing change over many years since the introduction of the Environmental Planning & Assessment Act 1979. This has often been in an effort to streamline and simplify approvals (i.e. development control).
1.1 Outline of the Unit
The Unit Outline sets out what the Unit is trying to cover. The Unit Outline states that the Unit “describes the general planning issues relevant to developments in rural and urban areas. The content covers the factors important in determining the allocation and use of land and resources together with the contributions of development to the built and natural environment. Topics include urban and rural design issues; the impact of the 3 tiers of Government process on development control, and the legal, political and technical issues relevant to impact assessments. Particular attention will be paid to the role of the private sector in developing controls, self-regulation and appeal processes. Planning in both the micro and macro environments is examined in the context of sustainability, community resources and its strategic effects on the recycling of existing land and non-renewable natural resources.”
In this module of the Unit, we will examine the origins of planning and what we mean by planning in the context of land use, environmental protection and its relationship to health, amenity, economic and social benefits as well as the problems associated with planning.
Of special interest is the role of governments in the land use and development process. It is also important to consider the hierarchy of legal instruments which gives rise to decision making when considering a proposal for development. It is also important to reflect on the role played by those making decisions in relation to development.
The structure of the Modules are set out in the table below:
Module 1: Conceptual planning issues and constraints. Roles of Tiers of Governments.
Module 2: Planning Hierarchies and planning instruments.
Module 3: Achieving Planning Objectives.
Module 4: Development control and its place in Society. Certification and the role of the practitioner.
Module 5: Development and Environmental Impact. Sustainability concepts.
Module 6: The role of the Courts and tribunals, Planning and the future.
Module 7: Exempt, complying and code assessment vs merit assessment.
Module 8: Planning and the management of the natural environment.
Module 9: Planning and heritage conservation.
Module 10: Consultation, Rural and regional environments.
Each of these modules is supplemented by various readings and is underpinned by the use of the text Planning in Australia by Susan Thompson (Oxford University Press, 2nd Edition). The Modules and Learning guide identify which chapters are relevant to support student studies.
Students concentrating on jurisdictions outside of NSW may find other texts better suit their learning needs.
1.2 Defining Planning
In common parlance the term ‘planning’ has a broad range of meanings. In business we talk of strategic planning, corporate planning, business planning and even market planning. Yet these do not relate to the topic we are addressing, although we will use the term strategic planning to describe a different concept.
This course is about land use planning and the regulation of that process through what is referred to as ‘development control’. Other terms often used include ‘town and country planning’, ‘urban and regional planning’ and physical or ‘environmental planning’.
Today, the concept of planning has developed through a multi-disciplinary process of integration of various factors which influence or social, economic and environmental fabric of the places we live and work. This is often reflected through concepts of zoning plans. This tends to emphasise the physical aspects of land use planning. The role of the planner can be seen in several areas including transport planning, infrastructure planning, social planning, urban design, conservation planning and regional planning to name a few.
But any planning process must consider how to develop the aims, objectives, strategies and activities of development and there subsequent success in meeting these objectives. To properly consider the suitability of this process, the planner needs to scan the environment and determine the appropriateness of the aims and objectives of the plan in the context of the physical, social, economic and broader environmental factors which either constrain or facilitate development. Another key element however, is the political context in which planning takes place. We will return to these concepts throughout the course.
1.3 Defining Development Control
Development control relates to the regulation of development. This is achieved through the assessment and determination of proposals in order to achieve the stated planning objectives and to enhance the public interest and the protection of community values. The challenge that faces any planning process is that community values may change over time and our knowledge base upon which to make decisions may alter or improve thereby changing the basis of decision making over time.
Another challenge is related to who should make the decisions associated with land use. For example, it is commonly understood that local government provides the best perspective on the ‘public interest’ but what happens when local interests are challenged by interest at the regional, State or national level.
Read Text: Chapter 1. In Planning Australia. by S. Thompson. This provides a good overview of planning issues and the planning context for Australia.
1.4 Historical context for land use planning
Different societies have planned there city form. to achieve a range of purposes including defence, segregation of groups, separation of land use and religion. The cities of Rome, the Aztecs and China imposed a regulatory framework on land use to varying degrees of success.
The modern forms of planning can be attributed to what has been referred to as the ‘Garden City’ movement, which started during the 1830s and 1840s in England. This movement arose to promote improvements in public hygiene. In essence, planning supported efforts at improving public health through environmental health programs.
In 1898, Ebenezer Howard published the book Tomorrow, A Peaceful Path to Real Reform seeking to redress the squalor and crowded living conditions of the towns arising from the industrial revolution. Howard promoted lower density housing and he gathered support from influential people and was soon able to have a strong following which led to the establishment of the Garden Cities Association in 1899 and later evolved into the Town Planning Institute in 1913.
The Garden City movement and its real ability to cure the ills of the overcrowded, polluted townscape, forms the basis for many of today’s development control practices. It did this through the attention to the physical aspects of development including lot size and strict segregation of incompatible land uses.
In NSW, Hunters Hill was developed under the strong influence of the Garden City concepts. You can see the mix of housing in areas of Hunters Hill and Woolwich in which various estates were progressively broken up to form new garden suburbs, the concepts of which are still present in the planning provisions today. A Model Garden Suburb was subsequently formed at Daceyville, a southern suburb of Sydney, in 1912. The construction of Daceyville was a consequence of an ineffective piece of legislation - the Local Government Act of 1906. This legislation sought to set minimum building and health standards for the construction of housing, including the amount of light and ventilation required for dwellings. These new standards were, by and large, ignored by the construction industry resulting in slightly improved, but still substandard, housing. This Act did little to address the problem of almost one third of the population living in slums.
The concept of the garden city emphasised low density housing and was designed to achieve a city in a garden, with clear limits established through green belts, used for market gardening and the like. The clear intent of the movement was to improve human well being through the manipulation of the physical urban environment. In doing so however, planning schemes could not redress past development, but rather influence future development (as seen in Hunters Hill). This ‘protection’ of existing property rights is a theme which carries on to today and will be considered in future modules.
Read: The article by Charles Reade: Of Passion, Publicity and Planning. The period prior to World War 1 saw a substantial town planning movement become established throughout Australia and by 1916; Town Planning Associations were formed in each of the capital cities.
The next major change occurred in the post – World War II period. In NSW Part XIIA of the Local Government Act was inserted in 1945. This established the ability to develop “Town and Country Planning Schemes”. A process of building controls had already been established in the 1906 Act to regulate: “ …the erection of buildings as to height, design, structure, materials, building line, sanitation (and) the proportion of any lot which may be occupied by the building or buildings erected thereon”.
Subdivision was also controlled under the Local Government Act in 1919, which continued until its repeal with the Environmental Planning and Assessment Act amendments in 1998.
Similar processes occurred in other jurisdictions.
The 1945 amendments authorised Councils to prepare town planning schemes for their areas. An early problem was the ability to amend these schemes as necessary and with the need to release land for future urban purposes. To manage the process of changing planning schemes, the concept of Interim Development Orders (IDOs) was established in 1974.
In 1945, the NSW Government also established the Cumberland County Council for the Sydney region and in 1951; the County of Cumberland Planning Scheme came into effect and established the first forms of planning controls over many areas of Sydney. It was the first planning scheme of its type in Australia and covered some parts of Sydney which had never had any planning controls. A similar scheme was developed for the Newcastle region through the Northumberland County District Planning Scheme. Both were dissolved in 1963.
Read Text: Chapter 4. In Planning Australia. by S. Thompson. This provides a good overview of the history of planning in Australia.
Read: Future Sydney – A City of Cities, by Bob Meyer. This has a more detailed account of the processes of planning for Sydney. Even if you are not from NSW, this is an important case study on the development of land use planning in Australia.
2.0 The three tiers of government in Australia and their role in land use planning
Australia is a federation of states and territories that was formed in 1901 after 6 British colonies came together to prepare a constitution that would detail the structure and powers of the Federal Government which is divided between the Federal Parliament, the executive government and the judiciary (High Court). The colonies had all gained responsible government between 1855 and 1890. Each colony had democratic governments that were responsible for most matters within their own colony. Under the new federal constitution these colonies would become states and retain responsibility for a wide range of matters. It was therefore necessary that the Constitution clearly detailed those matters that new federal government would be responsible for. The Constitution details areas of exclusive responsibility of the Federal Government and areas of responsibility where the States may also legislate. The Constitution specifies that where there is an inconsistency between Federal and State legislation, the Federal law shall prevail.
The States and the Northern Territory have established a further tier of government within their jurisdictions. Local councils are not mentioned in the Constitution and are established at a state level through legislation detailing their role, powers etc. Together with the Federal and State/territory governments, local councils (local government) form. the three tiers of government in Australia.
Further reading: Infosheet 20 - The Australian system of government
Decision making on land use and development in Australia is shared between the three levels of government (being local government, State Government and the Commonwealth). On the surface, it would appear that the Commonwealth can override the States/Territories however this is subject to the constraints of the Constitution.
2.1 The role of local government
Local Government has traditionally had the major role in determining development proposals. Councils are subject to the provisions of the States’ Local Government Acts and planning legislation in each State.
In 1991, the NSW Public Accounts Committee noted:
“Local Government is a creature of State Legislation. Notwithstanding the fact that Councils are democratically elected, they are entirely reliant on the New South Wales Parliament for the delineation of their statutory powers. Accordingly, it is Parliament which sets the ground rules.”
Source: Report on Legal Services Provided to Local Government, PAC, 1991.
As will be seen, the powers which local councils enjoy in administering various statutes, such as planning laws, and in developing local policies is often limited where the State government sees its interest being threatened by local actions. In effect, local government is a tradition, adopted from the UK. Some councils have existed since the mid 1800s and arose because of local pressures to improve local infrastructure, especially roads, schools and hospitals, often with mixed success (due to an inability to raise sufficient funds).
In the period post Federation, States progressively enacted laws to create local councils and in NSW, councils were incorporated across the State, except the Western Lands, in 1906 (and amended after WWI to include subdivision control). Initially councils were only responsible for local roads and parks; however, over time these services have progressively increased (more so since the 1970s) to include garbage collection, emergency services and land use planning and development control. Today, many councils are concerned with the level of services it is required to undertake and the financial limitations it faces from the relevant state government.
2.2 Role of state governments
In Australia the Commonwealth has no direct land use planning powers conferred on it by the Constitution. Land use planning and development laws are therefore largely the domain of the States. This means that land use planning and development law varies from one state to another.
It should be noted that the territories (the Australian Capital Territory and the Northern Territory are subject to Commonwealth law and as such planning and development controls established in these jurisdictions are established with acceptance of the Commonwealth.
2.3 Role of the Commonwealth
The legislative power of the Commonwealth is set out in the Australian Constitution. In some cases the Commonwealth has exclusive powers (such as defence) or they may be shared with the powers of the states. The Constitution may be amended through a referendum. It is however noted that most referenda held in Australia have failed to bring about constitutional change.
Areas where the Constitution gives the Commonwealth legislative powers include the ability to enter into international agreements and to exercise powers over contributions. The Commonwealth used these powers to save K’gari (Fraser Island) in Queensland from proposals to mine the site (export powers) and to stop the Gordon below Franklin Dam in Tasmania (corporations powers). More recently, the Commonwealth prosecuted a farmer under environment legislation (Environment Protection and Biodiversity Conservation Act 1999 (Cth) for damaging a Ramsar Convention wetland (international agreements power).
As such, in many case, the decision making powers for certain land use decisions are joint decisions. Consider the NSW Government’s proposal for a Western Parkland City in Western Sydney. The proposal aims to see the delivery of approximately 73,000 new homes over the next 3 decades and necessitates the provision of biodiversity approvals under State and Federal law covering 11,000 hectares in Western Sydney.
Figure 1. Key NSW and Commonwealth legislative steps taken to prepare the Cumberland Plain Conservation Plan. NSW Department of Planning & Environment (2022), The Cumberland Plain Conservation Plan, NSW Government, Sydney, p 5. https://shared-drupal-s3fs.s3.ap-southeast-
2.amazonaws.com/master-test/fapub_pdf/Lisa+Drupal+Documents/Cumberland-Plain-Conservation- Plan-202208.pdf.
Read Text: Chapter 2 Planning in Australia by s Thompson. This chapter provides a good overview of the constitutional arrangements in Australia and governance of the land use decision making process.
You should start to consider your first assignment with these issues in mind. This assignment seeks to explore how the different tiers of government deal and interact with land-use planning matters. Explore a case study for your jurisdiction which relates how the Commonwealth has been able to intervene in land use planning decisions using the powers it has. Any clear examples of limiting the power of the Commonwealth is also worth considering.
3.0 Hierarchy of regulatory instruments
When considering the powers of decision makers it is also important to understand the hierarchy of legal instruments as well as the levels of government that are making the decision. The reason for this is that these instruments establish what process dominates or more importantly, what powers exist in arriving at a decision.
In broad terms, the hierarchy comprises both statutory and non statutory instruments. In planning terms, the hierarchy includes Acts of Parliament, Regulations, planning instruments, development control plans and/or policies, standards and guidelines. In some cases, this can be confusing as some documents appear to have one status level but maybe actually another. It can also be confusing where different instruments of the same status appear to be in conflict with each other.
In general, we recognise that Acts will always have dominance over regulations, which override planning instruments (plans) which in turn override guidelines and the like.
For example, if we consider the Building Code of Australia, many building surveyors feel that this is the dominant document which will guide there decision making process. However, a planning instrument which is established by an Act of Parliament may have higher authority than the BCA which is given effect through a regulation (as in NSW). In addition, decisions made by an authority are subject to review under administrative laws. Some principles of administrative law are not always written down but form part of the common law (although increasingly these are being formalised by statute).
In many jurisdictions, land-use plans also have a hierarchy such as State Planning Policies, Regional or Sub-regional Strategies, and local plans.
The other aspect explored in your first assignment is to ensure you have understood the structure and operation of your jurisdictions planning legislation. You should also consider what other legislation is linked to the planning systems such as threatened species protection or vegetation clearance laws. What other laws may be important?
4.0 The role of the planning professional
In order for the planning professional to be effective, they should possess a practical knowledge of planning principles and the processes of decision making for land use. Development assessment is a process of weighing up all the relevant information and identifying gaps in information that has often not been made available. This requires an understanding of politics, environmental impacts, the law and be able to understand/examine/assess other professionals to reach a reasonable and defensible decision.
We will return to this process when we consider the role of the ‘private certifier’ and ‘planning practitioner’ which includes the bushfire planning and design practitioner.
Read Text: Chapter 3. In Planning Australia. by S. Thompson. This provides a good overview of the role of the planning practitioner in Australia and the importance of professional bodies and the need to develop a ‘Code of Ethics’.
5.0 Summary
This Unit is about the relationship between planning instruments and the development control process. Planning has evolved and continues to evolve as Governments seek to facilitate appropriate development and stimulate economic development.
While land use planning provides great opportunities for creating vibrant, healthy, safe and attractive living environments, we find that there are often competing demands, and so, development control has become the process of balancing social, economic and environmental considerations. It is then often left to the building system to solve the construction problem, however, as we will see, this is the wrong way of resolving many key issues.
6.0 Links
For planning students do an online search for the Planning Institute of Australia website in your State – what are the requirements for membership to PIA.
For Bushfire Planning and Design Practitioners – go to the Fire Protection Association of Australia’s website. Also check out the Bushfire Protection Association of Australia website.
For Building Surveyors – search for your State Branch of the Australian Institute of Building Surveyors.