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How new planning rules could stop emergency services blocking housing
By Max Maddison
The NSW Planning Department would have the power to override advice from emergency services about housing applications in fire-prone land or flood zones under a proposed overhaul of the state’s Environmental Planning and Assessment Act.
A new bill is expected to give the department more explicit power to intervene in cases where there is conflicting advice from government agencies, including the Rural Fire Service and the State Emergency Service, in the hopes of accelerating the approval process in the race to solve the state’s housing crisis.
Local representatives remain opposed to plans to develop bushland at Lizard Rock in Belrose into homes.Credit: Wolter Peeters
An example was the long-contested, 71-hectare development of Lizard Rock on Sydney’s northern beaches. The Metropolitan Local Aboriginal Land Council’s proposal to build 370 to 450 dwellings off Morgan Road in Belrose has been handed conditional approval, contingent on sign-off from the RFS which opposes it.
The proposed reforms would largely deal with less controversial issues, such as conflicting agency advice over driveways for developments. But planning sources, speaking on the condition of anonymity to detail confidential conversations, noted the department had not killed off the Lizard Rock development, first lodged in 2022, despite the RFS’s steadfast objections. The reforms could offer an avenue for green-lighting the project, the source said.
Discussions over reforming the 46-year-old, 327-page planning act have been taking place between Planning Minister Paul Scully and Liberal counterpart Scott Farlow since the beginning of the year.
Originally designed to improve environmental and social considerations in planning decisions, the act has been criticised as being too complex and creating subjectivity that can be weaponised by councils and communities to oppose more housing in their neighbourhoods.
The EPA regulation that came into effect in 2021 already contains a provision for the department’s secretary to override agencies in two instances: if an agency fails to respond in the required timeframe or there is a conflict in approvals between different approval bodies.
But a planning source with knowledge of the proposed changes said the reform would most likely make those powers more explicit, giving the department more cover to make captain’s calls.
The changes have long been pushed by developers.
“Changes to give clear definition on the circumstances where the SES and RFS can be overridden by DPHI [the Department of Planning, Housing and Infrastructure] would greatly assist,” Urban Taskforce chief executive Tom Forrest said.
“Ambiguity causes assessors to err on the side of refusal. Pending the detail, this is the sort of nuts and bolts reform we need.”
Approvals required from external agencies to green-light development applications, known as concurrences, have been a bugbear of developers because of the significant delays they cause, and because advice provided can prove contradictory to what has already been provided to the department or other agencies.
One example provided by developers was driveways. Transport for NSW would give the green light to an application, before the Environment Department would knock back the same request because of plans to cut down a tree. The onus is on the applicant to resolve the issue.
The controversial Lizard Rock proposal, renamed Patyegarang, has faced fierce backlash from the community and local politicians, and opposition from the RFS which says the plans are “high risk”. But advice obtained by the proponent alleges the agency’s advice is “overreach”.
In a submission as part of the development process, the agency noted the area was afflicted by “significant” fires in 1979 and 1994, and would almost certainly face future conflagrations. Also, with the development situated in the middle of dense bushland, the proposed density and limited evacuation routes would exacerbate the danger faced by any residents.
Despite this, the proposal remains alive.
In July last year, the department granted the land council’s proposal of an extension until March 31. Then on December 9, a majority of the North Sydney Planning Panel agreed the proposal had strategic merit but concluded the bushfire hazard needed to be “adequately addressed” before the application could proceed, calling for further engagement to resolve the “outstanding concerns”.
“Mitigation of bushfire risk had been canvassed extensively throughout the assessment of the Planning Proposal and while considerable work has been done to resolve that risk, the endorsement of the RFS had unfortunately not been obtained,” the panel said.
A scathing independent review undertaken by former NSW Police deputy commissioner Dave Owens on behalf of the land council argued the RFS’ comments were an “overreach” and imposed requirements “beyond what is necessary or reasonably justified under the established framework”.
“Not only is the proposal in compliance with these standards but is over and above the requirements in many areas,” concluded Owens, saying the RFS’ comments should be “given due but limited weight”.
A spokesman for the RFS said: “Following initial advice from the RFS, the North Sydney Planning Panel requested in December 2024 that the RFS undertake a further assessment of the Patyegarang ‘Lizard Rock’ development proposal.
“The RFS has since given further consideration to the proposal and has provided updated recommendations back to the Department of Planning, Housing and Infrastructure.”
With the construction of housing remaining sluggish, Premier Chris Minns and Scully have looked for projects that could boost supply. The proposed Lizard Rock development sits in independent Michael Regan’s electorate of Wakehurst, a seat Labor has held for only six of the past 60 years.
Asked whether the government was considering amending the act, Scully said it was clear more reforms were needed to address the state’s housing supply challenge, saying a “range of planning reforms, including possible legislative and non-legislative measures” were being considered.
NSW Planning Minister Paul Scully says more reforms are needed to address the state’s housing supply challenge.Credit: Steven Siewert
“Any reforms we consider will, of course, consult with and involve all agencies, including SES and RFS,” he told the Herald. “We have had several conversations with the opposition on options, and I hope that their commitment to a bipartisan approach on reforms continues.”
In late February, Scully told budget estimates: “In a contrary position to the previous government, which wanted to ban any consideration of options on Lizard Rock in the northern beaches, I have taken the view that proposal should rise and fall on their merits, the same as any other proposal.”
On Wednesday, Minns said the government was at the “pointy end” of a decision about the development. Simon Draper, the Secretary of the Premier’s Department, would soon meet the chief executive of the Metropolitan Aboriginal Land Council and its senior leadership, Minns said.
Farlow said one the “biggest hurdles in the planning system” was concurrences among multiple agencies, pointing to the system in Queensland where contradictory agency advice on development applications was resolved by the government rather than the applicant.
“Each and every week, I’ll hear of stories where agencies give conflicting advice and conditions,” he said.
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