State Government Imposition Of Planning Policies On Ku-ring-gai

The onerous legislation

Planning in New South Wales is mainly governed by the Environmental Planning and Assessment Act 1979.  This Act’s initial objectives were to protect the environment and allow community input into planning decisions.

However over the course of time amendments and regulations have made the legislation overly complex and cumbersome.  It has become progressively oriented towards development at the expense of planning principles for the greater public good, environmental protection, and public participation.  Of particular concern to Ku-ring-gai, under Sections 37-39 is a planning policy termed “State Environmental Planning Policy No. 53 - Metropolitan Residential Development”.  This policy, abbreviated to SEPP53, commenced on 26 September 1997.

SEPP53

SEPP53 contains development controls for so-called “integrated” housing (that is high-density or multiunit housing) and dual occupancy.  The stated objective is to create “compact cities”.  SEPP53 required councils in the Sydney Greater Metropolitan Region to prepare “residential development strategies” (RDS) that contributed to higher residential densities. If the planning minister agreed with a council’s residential strategy including the plans prepared to implement the strategy, then the council would not be “subject to” SEPP53 development controls – in reality forced medium and high-density development controlled directly by the planning minister. 

The minister of planning (in effect the state government) agreed to the plans submitted by all councils except Ku-ring-gai and SEPP53 now “applies” only to Ku-ring-gai.

Also of great concern is SEPP (Housing for Seniors or People with a Disability) 2004, previously SEPP5, ostensibly intended to increase the supply and diversity of residences for seniors or people with a disability.  This allows multi-unit development on a site zoned as single-residential.

Ku-ring-gai Council’s many attempts to comply with requirements

In compliance with SEPP53 requirements, Ku-ring-gai Council successively submitted a number of residential development strategies to the Department of Planning. The first was submitted by Ku-ring-gai Council in April 1996;the minister rejected it.

A second, revised, RDS was submitted in February 1997.  This strategy was also rejected by the minister.  The minister acted on the advice of the “Ministerial Residential Strategy Advisory Committee”. The committee at the time was comprised of 6 members chosen by the minister, of whom 3 were developers, two were bureaucrats, and the sole remaining member represented local government.  There was thus no representative chosen by the community for this purpose

A third RDS was drawn up in 1998 (the “Annand” Strategy).  Council meetings which debated and considered this strategy drew very large crowds of residents, strongly objecting to the plans.  Objections included the absence of baseline studies, the inconsistency of that RDS with the characteristics and constraints of the municipality, its random and unsystematic nature, and the lack of community consultation.  The strategy was abandoned by Council prior to being submitted to the minister.  A new Council was elected in the September 1999 local government elections. 

The new Council, with the support of the community, commissioned comprehensive and extensive baseline planning studies by external independent consultants of the characteristics and constraints of Ku-ring-gai in the context of high-density proposals, a process which had been commenced by the previous Council.  The studies were on Infrastructure, Transport & Traffic; Environment and Heritage & Neighbourhood Character. These four studies were subsequently assessed in a report commissioned by department of planning to have been appropriate and sound and the minister agreed with that assessment.

Council simultaneously undertook an extensive and comprehensive series of community consultation processes.  At meetings in the Ravenswood School hall packed audiences rejected the attempts by the State Government to force unwanted development onto the community. 

Further independent consultants were retained to draw up a new RDS, applying the characteristics and constraints identified in the baseline study reports together with the outcomes of the extensive community consultation processes.  This culminated in a new RDS being submitted to the minister in August 2000

By letter dated 3 July 2001, the then minister for planning, Dr Refshauge, rejected the RDS.  In rejecting the strategy the minister again followed the advice of the ministerial Residential Strategy Advisory Committee.  A developer represented on the committee who also stood to gain from the implementation of the RDS, provided the department of planning its own financial viability analysis of the RDS – notwithstanding the conflicts of interest.

An extended process of consultation and negotiation between Council and the department then commenced, involving numerous compromises, concessions and additions to the RDS by Council in an attempt by Council to obtain departmental support for exemption.

This process ultimately resulted in a draft Local Environmental Plan (LEP) (No 194), reflecting an extensively modified RDS, being submitted to the department of planning on 20 November 2002.

The number of additional dwellings in this RDS initially was in excess of 6,920. Under pressure on Council from the Department, that figure was increased to 10,000.

In the meantime, while the consultations and negotiations with the Department were still on foot, the minister unexpectedly announced, on 24 January 2002, that he would commence the process of rezoning six major sites in Ku-ring-gai under Part 4 of SEPP 53. The minister proceeded to gazette the six sites on 9 May 2003. The six development proposals included buildings up to seven storeys.

The State Government’s Metropolitan Strategy

Following a series of carefully staged public consultation meetings, from which critics and independent observers were prevented from attending, the State Government in December 2005 issued its Metropolitan Strategy titled “City of Cities. A plan for Sydney’s future”.  This strategy gave the dwelling target for the Hornsby and Ku-ring-gai area to be 21,000 dwellings.  As the Ku-ring-gai proportion of the then current population was 40% this implied a target of 8,400 dwellings for Ku-ring-gai. 

In an unprecedented development Ku-ring-gai Council offered to increase the number of additional dwellings to some 15,000, on the basis of an assumption that not all the proposed rezoned sites would be commercially viable for development and that therefore a take-up rate of less than 100% should be assumed.  A survey independent of council was organised by the community which revealed that no other council had used such an assumption at that time.  Unfortunately, for reasons unknown, the results of the survey were ignored by the Council.  As a consequence the proposal to increase the total number of dwellings based on an assumed take-up rate, was proceeded with.  Over the following year this  “take-up rate” was used by the department of planning in its policy to impose higher densities on Ku-ring-gai. This resulted, inevitably, in demands for additional dwellings far in excess of the Metropolitan Strategy target of some 8,400 dwellings.

Further takeover of Council planning powers

In June 2008 the Environmental Planning and Assessment Act was amended.  A significant amendment was Part 3A which allows the minister to declare a project a “state significant project” and to take control of the planning and assessment process for such a project.  Another amendment allows the minister to appoint planning panels to carry out planning functions of councils.

As a result of these amendments the minister appointed a planning panel for Ku-ring-gai, thus removing most of the planning power functions from the Council.  The planning panel’s functions were to prepare the Town Centres Local Environment Plan, assess development applications valued at more than $30 million or more than 90 days old, and prepare planning rules for dual occupancy development.

On 5 November 2008 some 400 people attended an extraordinary meeting at Ku-ring-gai Council Chambers held by the Ku-ring-gai Planning Panel to consider the draft plan for town centres, and passed their own motion that the plan was unacceptable.  The public subsequently made 1800 written submissions that were ignored.

On 27th of May 2009 the Ku-ring-gai Planning Panel presented the draft "Ku-ring-gai Local Environment Plan (Town Centres) 2008 for adoption in the main auditorium at UTS Lindfield before an overflow crowd of more than 1,000.

This LEP intended the large-scale demolition of six of Ku-ring-gai's key traditional village centres and numerous surrounding homes – in effect the heart of Ku-ring-gai - to be replaced by massive high-rise tower developments, many spreading deep into surrounding residential streets. . As a result the number of dwellings in Ku-ring-gai could escalate by as much as 18,000, an increase of more than 50% on the current number of dwellings in the municipality.

Informed public participation was impeded when the panel withheld the plans and documents from public release until the last permissible date before the meeting – over 900 pages of documents, reports, colour plans, and legal instruments, which residents would have to attempt to download and analyse in time for the meeting.

Further, accessibility to the UTS venue by public transport is minimal, the panel’s stipulated starting time of 6 pm, instead of the usual later times, ensured that peak hour road congestion, and tight after-work and after-school transport schedules, would have prevented a great many of the public from attending. Numerous representations from the outset to the panel chair for a more appropriate venue accessible by rail were summarily dismissed.  Predictably, access roads became gridlocked, excluding large numbers from making the 5:55pm deadline to register to speak at the meeting.  Requests for flexibility were ignored.

During the meeting for over three hours, resident after resident exposed the plans as grossly excessive, far in excess even of planning directives and targets, defiant of independent studies, and contemptuous of environmental and heritage constraints. Speaker after speaker denounced the panel's processes - as failures of transparency and due process, patronising and condescending of community issues and concerns, pandering to developer interests, being part of a process to impose a policy that was not in the greater public interest and a sham. Of those who did make it in time to register almost half were not permitted to speak at all.

However, in the face of tumultuous scenes of uproar, the planning panel resolved to adopt the draft "Ku-ring-gai Local Environment Plan (Town Centres) 2008", and to forward it to the Department and the minister of planning.

It now remains for this “Town Centres” LEP to be gazetted.  The Ku-ring-gai Residents Alliance is currently endeavouring to prevent this latest LEP being imposed onto Ku-ring-gai.