Airbnb is part of the “sharing economy” and is doing a great job disrupting the hotel industry and providing an occasional income source to many home owners. However, some people are concerned that the majority of Airbnb listings in most Northern Rivers towns are entire homes, many of which are rented all year round and potentially disrupting housing supply. Read More….
We are sometimes asked “what effect does an old Local Government Act approval have under a modern Local Environmental Plan”. This post outlines the general planning law mumbo jumbo, as we understand it, applicable to this situation.
Historic building approvals establish the lawfulness of the buildings to which they relate. This aspect was regulated by Section 314 LG Act 1919 (the 1919 Act). Those approvals have the consequence of approving the use of the buildings to which they relate pursuant to Section 316 of the 1919 Act.
When planning controls such as an Interim Development Order, Planning Scheme or Local Environmental Plan began to apply, no further approval for the continued use of a building was required. If the buildings had been lawfully constructed and they were then being lawfully used, Section 342U(4) of the 1919 Act obviates the need for any consent. Upon commencement of the Environmental Planning and Assessment Act (EPA Act ) on 1 September 1980, that same position remained by operation of Section 109 of that Act. Further, as enacted, the EPA Act did not repeal the provisions of Pt 11 of the 1919 Act.
The 1919 Act was repealed by the Local Government Act 1993 (the 1993 Act). By clause 14 of Schedule 7 to the 1993 Act, a building approval given under the 1919 Act is taken to be an approval given under Division 1 of Part 1 of Chapter 7 of the 1993 Act. By operation of clause 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, the (deemed) building approvals under Section 68(1) of the 1993 Act are “taken to be” development consents under the EPA Act.
As a consequence, the deemed development consents have the enduring nature of development consents that have become operative by implementation and are not subject to abandonment by discontinuance.
Please note that the above is general planning information. If you have a specific issue you should obtain expert town planning law advice from an experienced lawyer.
In June 2016 the Department of Planning exhibited its Draft North Coast Regional Pan. The goals of the plan included the protection of the environment and to provide places for vibrant communities meeting the changing demographic needs of the north coast. The plan also sought to create a prosperous economy focusing on the provision of job opportunities and improved transport connectivity.
PLANNERS NORTH made a submission to the Draft North Coast Regional Plan with a view to assisting the Department in improving the final version of the plan. Read more..
In May 2016 Byron Shire Council Exhibited its Draft Rural Land Use Strategy. The Draft Strategy proposed a 20 year strategic framework to guide future land zoning protection and development. The Strategy contained a vision, policy directions and corresponding set of actions to deliver those directions. It also included a number of local stories to showcase innovative responses to rural land management, environment restoration, produce growing, value adding products and services to promote rural qualities.
PLANNERS NORTH lodged a submission in relation to that strategy, suggesting a range of enhancements to improve the exhibited draft. Read more..
In early 2016 Ballina Shire Council adopted its Ballina 2035 aspirational blueprint to advance and consolidate Ballina as a major regional centre on the NSW North Coast. In association with the finalisation of the Strategy, Council established an Industry Peer Review Panel to examine the proposed strategy approach and actions with a view to providing critical feedback and additional ideas to the delivery of strategy objectives. One of our Partnership Principals formed part of the Industry Review Panel.
The 30 Second Explanation
Before September 1980 planning only related to the physical environment. When the Environmental Planning and Assessment Act commenced the term “environment ” was expanded to included “all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings”. Environmental Planning is the decision making processes associated with managing the relationships that exist within and between natural systems and human systems. Environmental Planning endeavours, via mandates centred around zoning; policy prescriptions; strategic land use planning; assessment and environmental protection, to manage outcomes in an effective, orderly, transparent way. The systems seeks to operate in an equitable manner for the benefit of all constituents for both the present and for the future.
In NSW the first attempt to incorporate environmental assessment and protection into planning law began in 1974 with the appointment of a Planning and Environment Commission. After various delays the Environmental Planning and Assessment Act 1979 (EP&A Act) came into force on 1 September 1980. The EP&A Act as originally made incorporated a three tired system of State, Regional and Local levels of significance, and required the relevant Reglatory authority to take into consideration the impacts to the environment (both natural and built) and the community of proposed development or land-use change. At the same time a specialist Court was also established to deal with the full range of planning and development related matters.
Within the EP&A Act almost all development requires a level of environmental assessment. Some high impact forms of development require an Environmental Impact Statement (EIS) detailing the impacts to both natural and human environments, which should be taken into consideration by the regulatory authority. Since its original drafting in 1979 the EP&A Act has been amended over and over. For example one of the key tenants of the original Act was the three tiered planning system of State, Regional and Local levels of planning significance. The Regional level has now been abandoned. A multiplicity of other changes to the Act have led to the Act being heavily criticised. In July 2011 the NSW Government began a comprehensive review of the State’s planning system. That review failed to gain Upper House support.
References
Environmental Planning and Assessment Act 1979 No 203
http://www.legislation.nsw.gov.au/maintop/view/inforce/act+203+1979+cd+0+N
Land and Environment Court Act 1979 No 204
http://www.legislation.nsw.gov.au/maintop/view/inforce/act+204+1979+cd+0+N
Department of Planning and Environment
http://www.planning.nsw.gov.au/
In 1969 Ian L. McHarg published, Design with Nature. This classic town planning book was essentially a step-by-step graphic overlay style instruction manual about how to access a region (big or small), in physical planning terms, and to determine appropriate land use uses that would endure and have long term sustainability.
The book promoted an ecological view, in which the designer becomes intimately familiar with an area through analysis of key aspects such as vegetation cover, soil, climate, hydrology, etc. Design With Nature was the first work of its kind “to define the problems of modern development and present a methodology or process prescribing compatible solutions”. McHarg’s philosophy is broadly about an ecological sensibility that accepted the interwoven worlds of the human and the natural, and sought to more fully and intelligently design human environments in concert with the conditions of setting, climate and environment.
Biodiversity; Carrying Capacity; Green Belt; Landscape; Over Development; Structure Planning; Views and Visual Analysis
Ian L. McHarg ( November 20, 1920 – March 5, 2001 ) was born in Clydebank, Scotland and became a landscape architect and a renowned writer on regional planning using natural systems. He was the founder of the department of landscape architecture at the University of Pennsylvania in the United States. His 1969 book Design with Nature pioneered the concept of ecological planning. It continues to be one of the most widely celebrated books on landscape architecture and land-use planning.
Design with Nature Ian L. McHarg 1969 ISBN 0-471-11460-X
Planning Minister Rob Stokes has announced proposed amendments to the NSW planning system to be implemented by the end of 2016. The amendments are intended to create a “simpler, faster and more inclusive assessment process”. Key aspects of the proposed amendments that the government is exploring include:
The proposed amendments are also intended to include a number of outstanding aspects of the former White Paper and Planning Bill 2013 that received widespread support. These include:
SOME THINGS ARE MISSING:
The Minister has made it clear that there are certain aspects of the 2012/2013 reforms that will not be revisited at this time, most notably including ‘code assessable development’ – a streamlined, fast-track assessment pathway for developments that comply with controls previously agreed to by the community. Some positive aspects of the 2012/2013 reforms that have not been mentioned include:
NEXT STEPS
The NSW Government will be running stakeholder advisory forums across the State with councils, groups, industry and peak bodies.
Once upon a time buildings, clothes, kettles and the layout of newspapers were things that were ‘designed’. We could even refer to ‘the design professions’ and be very confident everybody understood we were talking about visual disciplines.
Designers used to be people who worked out optimal ways things could be configured – things like buildings, clothes, graphics, and functional objects. They were the professionals who figured out ahead of time the most efficient trade-offs between useability, manufacturing cost, safety, recyclability, cost of materials, marketability, aesthetics, and more. Continue reading
