The Impact of New Legislation

The Environmental Planning and Assessment (EP&A) Act 1979, came into force in September 1980. That Act revolutionised the NSW Planning system at the time. It gave Local and State Governments the power to introduce specific planning policy in the form of State Environmental Planning Policies (SEPPs), Regional Environmental Plans (REPs) and Local Environmental Plans (LEPs). All of these documents are published in the Government Gazette and thus have force at law. Development Control Plans (DCPs) are also a provision of the act that allows for the Council or the Department of Urban Affairs and Planning (DUAP) to provide detailed guidelines for the development of the land that is covered by the DCP. The Act requires a statutory exhibition and consultation period for Regional and Local Environmental Plans. SEPP's do not have a statutory consultation or exhibition period.

Since the introduction of the EP&A Act, other legislation has been introduced that has had an impact on the administration of that Act. These include the Catchment Management Act (1989), the Local Government Act (1993) and the Threatened Species Conservation Act (1995) amongst others. There have also been a number of SEPP's and REP's made. All have been made for sound environmental and plannig reasons. Most of them have dealt with the environmental issues that confront the Rural Planner on a day to day basis. For example, the Catchment Protection Act introduced the concept of Total Catchment Management; the Threatened Species Conservation Act introduced new requirements into the assessment of DA's and there have been a number of SEPP's that have done the same - Number 44 - Koala Habitat Protection and Number 46 - Protection and Management of naive Vegetation to name two.

Local government, by its decisions and day to day administration and operations has the largest impact on the environment. It is the body that has the most responsibility for the administration of the EP&A Act through the Development Application and LEP / DCP processes. It is also the body that is closest to the community in terms of the accountability for its planning decisions and administration. As a result of the process of Government however, it is the last to know or be informed about a change in the legislative requirements, be they a new Act or a SEPP or REP. This lack of communication and forewarning can cause a Council to determine an application in good faith, but without the knowledge of the change in the legislation or new Planning instrument. Who is responsible for advising the Local Government Planner of these changes ? Has the Council issued a consent that could be declared invalid ? Who will fund any appeal lodged against this decision ? The answer to these questions is difficult, complex and subject to interpretation.

An example is provided by the listing of the Cumberland Plain Vegetation as an endangered ecological community under the Threatened Species Conservation Act. This was listed by the Scientific Committee set up under that Act and gazetted. The effect is that all DA's have to assess this. There were no procedures put in place for Local Government Planners to be able to assess what was Cumberland Plain Vegetation nor was there any training carried out prior to the gazettal. This has all occurred after the gazettal.

There is a need to allow time to educate the planners about the new legislation or instrument so that they can understand its provisions and be prepared to assess applications that are affected by it. It is understood that there is a need to introduce some legislation quickly but the track record of the Government so far has been to introduce the legislation then, some weeks or even months later, introduce the guidelines. This causes confusion and anxiety amongst the Local Government Planners whose job it is to interpret the legislation and to explain it to applicants and other members of the public, including the Rural Planners in private practice and even some in the State Government Departments. There is a need therefore, for the State Government Departments to consult with the Local Government and private practice Planners on the new legislation and Planning Instruments so that any obvious teething problems can be ironed out. The Planners working in the State Government Departments can not be expected to know the details of a local area and to anticipate the implementation problems prior to the legislation or planning instrument coming into force. If they consult with those local planners, the problems can be ironed out before the legislation is made or the Planning Instrument or Act comes into force.

So what is the solution to this issue that is one of the largest issues facing rural planers today ? It is not an easy one but the main issue is one of communication. Perhaps one solution could be for the government not to gazette any new legislation or planning instruments without the production of guidelines and information sessions to educate the planners who have to enforce it. If it is necessary to bring in legislation quickly, then it would be helpful for guidelines to be established as soon as possible and to have an automatic review period for the legislation and planning instruments after they are gazetted and come into force.

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