Are New South Wales' planning laws climate-change ready?

Environmental and Planning Law Journal

Volumn 28, Issue 1, 2011, Pages 17-35

  Ghanem, Robert ^a   Ruddock, Kirsty ^b  

^a UNIVERSITY OF SYDNEY   (Australia)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

CARBON EMISSION; CLIMATE CHANGE; EMISSION CONTROL; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PLANNING; GREENHOUSE GAS; KYOTO PROTOCOL; MITIGATION; STRATEGIC APPROACH;

AUSTRALIA; NEW SOUTH WALES;

EID: 84866983721     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (108)

1. Ku-ring-gai Council and Lake Macquarie Council have climate change adaptation strategies and Byron and Shoalhaven Council have draft strategies completed, with many other councils developing such strategies.
2. See the Cities for Climate Protection Program, http://www.environment.gov.au/settlements/local/ccp viewed 10 November 2010, which shows that 233 local government areas are participating, covering 84% of Australia's population.
3. New South Wales Government, New South Wales State Plan (2010), http://www.nsw.gov.au/sites/default/files/pdfs/chapters/NSW%20State%20Plan%202010_web_0.pdf viewed 16 December 2010.
4. New South Wales State Plan, n 2, p 5.
5. New South Wales State Plan, n 2, p 37.
6. This includes $175 million in residential rebates for hot water systems, hot water circulators, rainwater tanks, dual flush toilets and water efficient washing machines, $30 million for the Public Facilities Program to support water and energy savings initiatives of government, education and community facilities, $20 million for the School Energy Efficiency Program, and $20 million for the Rainwater Tanks in Schools Program.
7. See New South Wales Government, Metropolitan Transport Plan (2010) http://www.nsw.gov.au/metropolitantransportplan viewed 10 November 2010.
8. The Ministerial directions made under s 117(2) can be found at http://www.planning.nsw.gov.au/LinkClick.aspx?fileticket=7CJK_TA6Dqo%3d&tabid=248&language=en-AU viewed 11 November 2010.
9. Ministerial directions, n 7, cl 5.1.
10. Ministerial directions, n 7.
11. Environmental Planning and Assessment Act 1979 (NSW), s 117(2).
12. New South Wales Government Metropolitan Strategy, City of Cities: A Plan for Sydney's Future (2010), http://www.metrostrategy.nsw.gov.au viewed 14 October 2010.
13. New South Wales Government, Sydney Towards 2036 (2010), http://www.metrostrategy.nsw.gov.au/Resources/SydneyTowards2036/tabid/286/language/en-AU/Default.aspx viewed 14 October 2010.
14. New South Wales Government Metropolitan Strategy, n 11, p 29.
15. See Holloway D and Bunker C, "Planning Housing and Energy Use: A Review" (2006) 24 Urban Policy and Research 115.
16. See also Pears A, "Does Higher Density Really Reduce Household Energy Requirements? It Depends..." (2005) 23 Urban Policy and Research 367, which cites a study by Taper for the New South Wales Department of Infrastructure, Planning and Natural Resources (2005).
17. Holloway and Bunker, n 14 at 120.
18. Pears, n 14 at 367.
19. Pears, n 14 at 368.
20. Newman P, Transport and Greenhouse: Refocusing our Cities for the Future, Submission to Garnaut Issues Paper 5 (2008): Transport, Planning and the Built Environment; Holloway and Bunker, n 14 at 117.
21. New South Wales Government Department of Planning, Far North Coast Regional Strategy (2006) pp 21-23, http://www.planning.nsw.gov.au/plansforaction/pdf/fncrs_strategy_fin.pdf viewed 14 October 2010.
22. New South Wales Government Department of Planning, Lower Hunter Regional Strategy (2008) p 27, http://www.planning.nsw.gov.au/regional/pdf/lowerhunter_regionalstrategy.pdf viewed 14 October 2010.
23. Environmental Planning and Assessment Act 1979 (NSW), Div 2, Pt 3.
24. New South Wales Environmental Defender's Office, Coastal Councils and Planning for Climate Change: An Assessment of Australian and New South Wales Legislation and Government Policy Provisions Relating to Climate Change Relevant to Regional and Metropolitan Coastal Councils (2008).
25. New South Wales Environmental Defender's Office, n 22.
26. New South Wales Government, Standard Instrument: Local Environmental Plans (2006) cl 5.5.
27. Bradbrook AJ, "Solar Access Law: 30 Years On" (2010) 27 EPLJ 5.
28. Bradbrook, n 25 at 11.
29. Bradbrook, n 25 at 17-18, 20-21.
30. Preston BL, Smith T, Brook C, Gorddard R, Measham T, Withycombe G, McInnes K, Abbs D, Beveridge B and Morrison C, Mapping Climate Change Vulnerabilty in Sydney Coastal Councils Group (2008), prepared for the SCCG by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) Climate Adaptation Flagship, http://www.csiro.au/files/files/pk2x.pdf viewed 14 October 2010.
31. Preston et al, n 28.
32. New South Wales Government, Standard Instrument: Principal Local Environmental Plan (Standard LEP) 2006, http://www.planning.nsw.gov.au/LocalEnvironmentalPlans/StandardInstrument/tabid/247/language/en-AU/Default.aspx viewed 16 December 2010.
33. New South Wales Government, n 24.
34. See discussion below under coastal policies and strategies.
35. Ghanem R, Ruddock K and Walker J, "Are Our Laws Responding to the Challenges Posed to Our Coasts by Climate Change?" (2008) 31(3) UNSWLJ Forum 4046.
36. Clark K, "Out with the New and in with the Old Houses", The Sydney Morning Herald (4 January 2010).
37. See Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52.
38. New South Wales Government, Standard Instrument (Local Environmental Plans), n 24, cl 5.
39. Byron Shire Council, Development Control Plan (2002), Pt J - Coastal Erosion Lands.
40. At a federal level, there are no overarching coastal protection or management laws. However, recently the house standing committee on climate change, water, environment and the arts, in its Inquiry into Climate Change and Environmental Impacts on Coastal Communities called for the federal government to co-operatively manage the coastal zone and provide leadership on this issue. In particular the committee recommended a consistent methodology for vulnerability assessment and the establishment of a national coastal zone. It further recommended an intergovernmental agreement on the coastal zone between state, territory and local governments and in co-operation with community and coastal stakeholders, and the independent national coastal advisory council.
41. Coastal Protection Act 1979 (NSW), s 3.
42. Coastal Protection Act 1979 (NSW), s 55C.
43. New South Wales Coastal Policy (1997), p 17, http://www.planning.nsw.gov.au/plansforaction/pdf/CPPARTA.PDF viewed 14 October 2010.
44. Environmental Planning and Assessment Regulation 2000 (NSW), reg 92.
45. See Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 58 at [17], [22].
46. See New South Wales Environmental Defender's Office, n 22.
47. New South Wales Government, New South Wales Sea Level Rise Policy Statement (2009), http://www.environment.nsw.gov.au/resources/climatechange/09708sealevrisepolicy.pdf viewed 14 October 2010.
48. New South Wales Government, New South Wales Coastal Planning Guideline: Adapting to Sea Level Rise, http://www.planning.nsw.gov.au/LinkClick.aspx?fileticket=VYjmQirQlAk%3d&tabid=177&language=en-US viewed 14 October 2010.
49. New South Wales Coastal Planning Guideline: Adapting to Sea Level Rise, n 46.
50. Coastal Risk Management Guide, http://www.environment.nsw.gov.au/resources/water/coasts/10760CoastRiskManGde.pdf viewed 14 October 2010.
51. New South Wales Sea Level Rise Policy Statement, n 45, p 3.
52. See Crawford B, "Battle Lines in the Sand Over New Laws", Sunday Telegraph (19 September 2010), http://www.dailytelegraph.com.au/news/battle-lines-in-the-sand-over-new-laws/story-e6freuy9-1225926000748 viewed 14 October 2010.
53. See http://www.governmentnews.com.au/2010/09/27/article/LGSA-welcomes-new-coastal-protection-laws/LCTVJADEJD.html viewed 14 October 2010.
54. Australian Network of Environmental Defender's Offices, Submission on the Inquiry into Climate Change and Environmental Impacts on Coastal Communities (7 June 2008) http://www.edo.org.au/policy/climatechange_coastal080610.pdf viewed 14 October 2010, p 27.
55. Gippsland Coastal Board v South Gippsland Shire Council [2008] VCAT 1545.
56. Comer v Murphy Oil USA 607 F 3d 1049 (2010).
57. Environmental Planning and Assessment Act 1979 (NSW), s 75B(2).
58. Environmental Planning and Assessment Act 1979 (NSW), ss 75A, 75B(2).
59. New South Wales Government, State Environmental Planning Policy (Major Development) (2005), http://www.majorprojects.planning.nsw.gov.au viewed 12 November 2010.
60. The Planning Assessment Commission has been granted the role of determining project applications under Pt 3A in some limited circumstances, including where the proposed project is in the Minister's electorate or where political donations have been made.
61. Environmental Planning and Assessment Act 1979 (NSW), s 75C.
62. New South Wales Government, State Environmental Planning Policy, n 57, cls 6-6A, Sch 5. There are others listed in the SEPP.
63. Environmental Planning and Assessment Act 1979 (NSW), s 75J.
64. Aldous v Greater Taree Council (2009) 167 LGERA 13.
65. Minister for Planning v Walker (2008) 161 LGERA 423.
66. Minister for Planning v Walker (2008) 161 LGERA 423
67. Aldous v Greater Taree Council [2009] 167 LGERA 13.
68. See Drake-Brockman v Minister for Planning (2007) 158 LGERA 349.
69. Planning Act 2008 (UK), s 14.
70. Planning Act 2008 (UK), s 31.
71. Planning Act 2008 (UK), s 5.
72. Planning Act 2008 (UK), s 10.
73. Planning Act 2008 (UK), s 104.
74. Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (UK), Sch 4.
75. Planning Act 2008 (UK), ss 37, 50.
76. Defined in State Environmental Planning Policy (Major Development), n 57.
77. Environmental Planning and Assessment Act 1979 (NSW), s 75R(3A). This section allows the Minister to amend an environmental planning instrument to remove or modify any provisions of the instrument that purport to prohibit or restrict the carrying out of Pt 3A development simply by publishing an order on the New South Wales legislation website.
78. See State Environmental Planning Policy (Major Development), n 57, Sch 3, Pt 14 for South Wallarah Peninsula.
79. The only refusals since Pt 3A commenced are the following projects: Stamford Plaza Double Bay, Somersby Quarry, coastal development in Cronulla, Bickham coal mine, Currawong, Moruya East Village.
80. See major development monitors from 2005-2009 which can be found at http://www.planning.nsw.gov.au/SettingtheDirection/Corporatepublications/tabid/95/language/en-AU/Default.aspx viewed 14 October 2010.
81. See http://www.planning.nsw.gov.au/SettingtheDirection/Corporatepublications/tabid/95/language/en-US/Default.aspx#Major_Development_Monitor viewed 14 October 2010.
82. CSIRO, Water Availability in the Murray-Darling Basin (2008), http://www.csiro.au/resources/WaterAvailabilityInMurray-DarlingBasinMDBSY.html viewed 14 October 2010, pp 52-53.
83. See Director-General's Assessment Report for Anvil Hill coal mine (2007), http://www.majorprojects.planning.nsw.gov.au/files/6562/Director-General%27s%20Assessment%20Report.pdf pp 10, 18-19.
84. Environmental Planning and Assessment Act 1979 (NSW), s 75M.
85. When determining whether to approve a concept plan, the Minister must decide what further assessment is required before final approval is given. Final project applications for stages or elements of the concept plan may be determined by the Minister or by the local council.
86. Environmental Planning and Assessment Act 1979 (NSW), s 75M(3A).
87. Declaration of Minister for Planning (26 February 2008) to classify all electricity generation facilities that have the capacity to generate at least 250 megawatts of power as critical infrastructure.
88. See case of Ned Haughton v Minister for Planning which was heard in mid-September 2010. Judgment is currently reserved.
89. Friends of Chattahoochee Inc v Georgia Dept of Natural Resources; Franklin County Power of Illinois LLC v Sierra Club (US Sup Ct, 29 June 2009); Hempstead County Hunting Club v Arkansas Public Service Commission.
90. In 2007, the Australian Sustainable Built Environment Council commissioned a report by the Centre for International Economics entitled Capitalising on the Building Sector's Potential to Lessen the Costs of a Broad Based Greenhouse Gas Emission Cut (2007). The report states that the building sector accounts for 23% of Australia's emissions and concludes that the building sector as a whole could reduce its share of greenhouse gas emissions by 30-35% whilst accommodating growth in the overall number of buildings by 2050. This can be achieved by using today's technology to significantly reduce the energy needed by residential and commercial buildings to perform the same services. For example, by replacing equipment with more energy efficient models at the natural replacement rate and upgrading the performance of the building shell (p 3).
91. See also Intergovernmental Panel on Climate Change (IPCC), IPCC Fourth Assessment Report, Climate Change 2007: Mitigation of Climate Change, (2007) Ch 6, "Residential and Commercial Buildings", p 39.
92. The accepted figure of 23% has been criticised as being based on erroneous assumptions and it has been argued that the real figure is closer to the United Nation's estimate of 40% or higher.
93. See, eg, http://www.thefifthestate.com.au/archives/2112.88 Pears, n 14 at 367, 369.
94. Thorpe A and Graham K, "Green Buildings - Are Codes, Standards and Targets Sufficient Drivers of Sustainability in New South Wales?" (2009) 26 EPLJ 486.
95. Nixon S, "High-rise Residents Big Energy Guzzlers", The Sydney Morning Herald (30 May 2006).
96. Thorpe and Graham, n 89 at 486, 489.
97. Thorpe and Graham, n 89.
98. State Environmental Planning Policy (Exempt and Complying Development Codes) (2008), Pt 2.
99. This would allow for reduced ventilations rates which will have an effect on the overall energy improvement of the home.
100. Residential developments on lots over 600 square metres are highly suitable for geothermal heating systems. These save on long-term maintenance costs and reduce water usage, while providing indoor thermal comfort.
101. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, reg 3.5.
102. See Clark, n 34.
103. Thorpe and Graham, n 89 at 492.
104. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Subdiv 3, Pt 2.
105. Thorpe A and Graham K, n 89 at 493.
106. Under a Council of Australian Governments agreement, all States are currently moving towards adopting the 2010 amendments (volumes one and two). Not all jurisdictions implemented the amendments on 1 May 2010, but implementation will be no later than May 2011, (http://www.abcb.gov.au/index.cfm?objectid=4B5F6900-28B1-11DE-835E001B2FB900AA) viewed
107. December 2010. In New South Wales, the 2010 amendments to the building code commenced 1 May 2010.
108. See http://www.planning.nsw.gov.au/LinkClick.aspx?fileticket=SuV4Mu60NO8%3D&tabid=82&language=en-AU) viewed 17 De-cember 2010.