Governance, property rights and planning in peri-urban areas:

Greater Sydney case study

Peter Williams Planning and Urban Development Program

Faculty of the Built Environment University of New South Wales

Aims

• This paper seeks to demonstrate that longer term strategic planning in peri-urban Sydney has been severely compromised by State Government decisions.

• The prognosis for rural lands deemed suitable for urban development in and around the Sydney Basin remaining in rural use is doubtful.

Structure

• Introduction

• Planning the Sydney Region? – Sydney’s metropolitan plans

– Growth Centres Commission

– Landholder-nominated land releases

– Ministerial land deals in the Lower Hunter

• Property rights and planning in peri-urban Sydney – The Growth Centres’ green zones

– Environment protection zones

• Conclusion

Introduction • In its editorial of 6 October 2006 titled, ‘On top in Pitt Town:

Sartor saves the day’, The Sydney Morning Herald opined:

“Of course, planning policy must continue to seek to preserve Sydney’s farms and vegetable gardens by releasing other land first. Ultimately, though, where the choice is between land and lettuce, Sydney will have to take the land. The lettuce, after all, can grow somewhere else.”

• This decision is symptomatic of the intersection of governance, metropolitan planning and property rights issues related to urban growth management on the fringe of Sydney over the past 10 years.

• A number of State Government decisions and property rights confrontations have destabilised rigorous strategic land use planning in NSW.

Planning the Sydney Region?

Sydney’s Post-War Metropolitan Plans

Plan Year Made Duration

1. County of Cumberland Planning Scheme 19481 20 years

2. Sydney Region Outline Plan 1968 20 years

3. Sydney Into Its Third Century 1988 7 years

4. Cities for the 21st Century January 1995 4 years

5. Shaping Our Cities December 1998 7 years

6. Cities of Cities: A Plan for Sydney’s Future December 2005 5 years

7. Metropolitan Plan for Sydney 2036 December 2010 3 years

8. Draft Metropolitan Strategy for Sydney to 2031 May 20132

1 The County of Cumberland Planning Scheme was completed in 1948, but not formally adopted until 1951. 2 The final Metropolitan Strategy for Sydney to 2031 is due for release by the end of 2013.

Source: Compiled by author, 2013

Sydney’s Growth Centres

Metropolitan Planning and Sydney’s Growth Centres

2005 Metropolitan Strategy

Sydney’s Growth Centres will:

• The Growth Centres Commission was a Statutory Body operating under the Growth Centres (Development Corporations) Act 1974. ‘Merged’ with DoP, October 2008.

• This Act was the principal legislation under which the Commission operated

• The Commission operated under a Board of members which reports directly to the Minister for Planning

• State Environmental Planning Policy (Sydney Region Growth Centres) 2006, gazetted 28 July 2006, is the legal instrument that establishes the planning rules and objectives for the Growth Centres. Approval authorities, such as Local Councils, must apply this policy when making planning decisions about land within the Growth Centres

The former Growth Centres Commission – statutory framework

Role of Sydney’s Growth Centres

Sydney’s Growth Centres charter is to:

• coordinate land releases in the Growth Centres in North West and South West Sydney;

• coordinate Precinct Planning to effect rezoning of the released land;

• coordinate the timely provision of infrastructure required for the rezoned land; and

• collect a contribution as part of the development process to help fund that infrastructure.

Role of Sydney’s Growth Centres

• The task over 30 years: – to facilitate as much land to market as quickly as possible,

by coordinating planning and infrastructure. – To provide capacity for 181,000 dwellings, land for

employment and $7.5 billion in regional infrastructure to support up to half a million additional residents in Sydney.

– Over 12,300 developable hectares; over 2,500 hectares for employment

• Achieved by: – Linking planning and infrastructure provision – reduction of time to rezone land from seven to 10 years to

two to three years – A precinct planning approach

Facilitation of land planning and release

• Reduction of time to rezone land from seven to 10 years to two to three years through adopting a precinct planning approach.

• Approval and adoption of Draft Conservation Plan for the Growth Centres which provides biodiversity certification throughout the Growth Centres

• Agreed protocols for dealing with other concurrences at Precinct level instead of Development Application (DA) level, so reducing development times

• Formulation of the Growth Centres Development Code

• Implementation of the Precinct Acceleration Protocol

YET: • Decision to abolish the GGC appears to have been a highly political one

– inter-factional power struggles; lobbying by unfavourably disposed developers; support by former Planning Minister for GCC retention

Managing growth? Landholder-nominated land releases

• Developer pressure following release of City of Cities for greenfield releases outside the Growth Centres (e.g. Macarthur South/Appin) – contrary to sustainability criteria.

• August 2011: Planning Minister calls for expressions of interest from landowners seeking to develop their land for housing.

• In response to invitation for landowner-nominated land releases, 43 sites submitted for consideration, of which 29 were selected for further evaluation: rezoning of seven of these commenced and 13 to be investigated in upcoming local or regional strategies.

Ministerial land deals in the Lower Hunter

• ‘Unplanned’ land rezonings/development approval and land dedication agreements

• In finalising the Lower Hunter Regional Strategy the NSW Government reached agreement with four major landholders for the dedication of over 12,000 hectares of land in return for the recognition of additional development potential over 3280 hectares.

• The details of the negotiated outcomes were set out in a series of Memoranda of Understanding between the NSW Government and the four landholders/developers

• Land and Environment Court ‘land bribe’ finding against the Minister for Planning

(Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140)

Department of Planning “documents show that four major landowners in the area lobbied to have their land included in the Lower Hunter Regional Strategy.” - “Sartor overrides conservation advice”, SMH, 19 March 2007

Property rights and planning in

peri-urban Sydney

Property

rights

Housing

supply

The Growth Centres’ green zones

• Abandonment of the green zones or areas – formally described as Landscape and Rural Lifestyle Zone (LRLZ) under the 2005 Sydney Metropolitan Strategy

• On 3 November 2005, the NSW Minister for Planning announced the scrapping of two proposed ‘green zones’ in the south-west and north-west urban growth centres (that is, new urban release areas) of Sydney.

• This ‘green overlay’, designed to preserve existing non-urban land for aesthetic, biodiversity conservation, recreation and agricultural purposes, covered 8,400 hectares in the land release areas, and a further 14,000 hectares outside the growth centres boundary.

North West Growth Centre SEPP Map

South West Growth Centre SEPP Map

The demise of Sydney’s new urban release area ‘green zones’

• The role property rights played was admitted by the Minister in an earlier media release when he announced a review of the LRLZ and stated that “the green zones were never intended to change people’s existing land use rights.” (5/9/05)

• Recognition of these implications was acknowledged in the Sydney Morning Herald the next day when it reported:

Developers and groups representing thousands of aggrieved

landholders yesterday applauded the State Government’s decision to walk away from a green zoning proposal that had denied property owners the right to cash in on future housing estates. (10/9/05)

Environment Protection Zones and Down-zoning

• Four new ‘environment protection’ zones in NSW - local councils warned by DoP to maintain wider designation of permissible land uses due to the potential to attract compensation through compulsory acquisition for injurious affection through down-zoning

“The range of uses proposed to be permitted in the E zones is a consideration for council in consultation with the Department of Planning. In determining uses, council should be aware that the range of uses should not be drawn too restrictively as they may, depending on circumstances, invoke the Land Acquisition (Just Terms Compensation) Act 1991 and the need for the Minister to designate a relevant acquiring authority.

Unless a relevant acquisition authority has been nominated and that authority has agreed to the proposed acquisition, council should ensure, wherever possible, that the range of proposed land uses assists in retaining the land in private ownership.”

• Advice appears to be targeted specifically to proposed E2 Environmental Conservation and E3 Environmental Management zones.

• A major extension of the policy presumption and legal requirement that compensation is only payable in situations where land is identified and reserved in a statutory planning instrument for future public purpose, and not for mere ‘injurious affection’.

Conclusion

• The recent history of metro planning for Sydney, particularly as it affects peri-urban areas, has been racked by short-term ad hoc decisions governed by political expediency.

• Long term strategic planning for Sydney has been marred by the preoccupation of successive State Governments with electoral cycles, urban land release decisions that are deferential to developer and landholder interests, and planning, land use and zoning policy that is subservient to legally unfounded but politically powerful property rights influences.