Urban Taskforce members welcomed the announcement from the Minister for Planning and Homes, Hon Anthony Roberts, that the draft Design and Place SEPP will not proceed. 

But why was there so much opposition to this new planning policy?  After almost two years of consultation, why did it all fall apart?

The process began with Rob Stokes advising industry that he wanted to update the Apartment Design Guide.  This was welcomed by industry and all industry representative bodies engaged constructively with the office of the Government architect.  The promise was a modernisation of the guidelines, making their application more consistent and reducing their prescriptive nature and unnecessary level of detail.

Generally, industry was supportive and jumped on the wagon.  This was seen as a constructive way to take advantage of the COVID pause and progress some lasting reform to set us up for post COVID recovery.

But it all started to go bad when the scope of the project grew … and grew … and grew.  Rather than amending the apartment design guidelines, the new Design and Place SEPP sought to impose itself into new areas.  The Urban Design guide was to apply far beyond apartments – to new communities.  New provisions for active transport, mandated tree canopy cover and ready access to public parks and green open space (even white roof tops for new homes) were all creeping into this new agenda.  Worse, the Draft SEPP was mandating the rapid growth of the use of design reviews for an ever increasing number of projects.  When the list was expanded to include design reviews for industrial warehouses located in industrial precincts, industry jumped off the wagon.

It became increasingly clear that the Government Architect was being used to drive the Minister’s personal agenda.  The first public exposure of this Bill was catastrophic and ultimately sealed the fate of this SEPP.  The planners in the Department refused to back the SEPP.  They would line up to tell industry that it had nothing to do with them, they knew it was inconsistent with the EP&A Act and they would simply say it is a matter between the Minister’s office and the Office of the Government Architect.

When industry pointed out that the exposure draft provisions would cut yield by over 30% while increasing costs for apartment construction (over and above the improvements in construction driven by the Building Commissioner), the Government Architect’s office simply shrugged their shoulders.  The consistent message from the property sector was we support improvements in design – indeed the market is pushing developers to deliver improved sustainability and design quality.  But any loss of yield arising from, for example, increased separation between buildings needs to be compensated by increasing height or other adjustments to FSR, these options were not accommodated.

In response, DPE rushed to commission Deloitte to conduct a Benefit Cost analysis.  Industry was advised on several occasions that they would be involved in review of the work and the assumptions that informed the analysis would be transparent.  When the BCA (as it is known) was finally published, it was paper thin and as opaque of Loch Ness.  Even our GIPA application was refused, primarily on the grounds that the policy was not complete as it was still in draft form.  Ironic, as we were required to provide feedback on the SEPP.  Industry, collectively (all industry groups) walked away.

In the end, there was no consideration over who was going to pay for these improvements, nor how they would pay for them (given the current state of property prices and pending interest rate rises).  Indeed, many felt that the new draft provisions would increase costs, slow down approvals, increase risk but deliver no practical benefit in design terms.  New home-owners were being asked to pay for broad community benefits.  Ultimately, it was apparent that the entire draft SEPP was nothing more than virtue signalling with a new reel of green tape to be administered by architects then dumped on planners.  No wonder the Australian Institute of Architects were so disappointed when the Minister said this new SEPP would not proceed. But the lack of nuance in the AIA (NSW) commentary revealed that they either did not read the draft SEPP, or they were conned by the virtue signalling.

The critics chose to ignore the fact that the Minister announced that the Apartment Design Guidelines and SEPP 65 will remain in place as they currently stand.  They also ignored the Minister’s decision to excise the strengthened BASIX environmental component from the draft Design and Place SEPP and to fully proceed with these important sustainability improvements, as planned, later in the year.  This will ensure that NSW is in line with its own environmental commitments and ensure consistency with other states.

The idea that the non-progression of the remainder of the Design and Place SEPP would have had any impact of the location of new homes in flood prone areas or in bush fire exposed land is nonsense.  It was cheap sensationalisation. There has been a ban on new development in land below the 1:100 year flood prone land line for decades.  Those properties that were lost were approved way before the new planning provisions were established and those provisions still exist today.  The fact (completely lost on the architects) that all of the SEPPs, the Ministerial Directions, the guidelines and practice notes that enable sensible and safe development continue to prevail seemed to have been ignored by the small community of lower tier architects that dominate thinking the NSW chapter of their industry lobby group.

The Minister for planning simply removed the requirement for these matters (which already must be addressed) to be addressed through this new SEPP.  His focus was on leaving the regulatory safety net which is currently there in place and not progressing new policy which would slow down the supply of new homes.

Another factor ignored by the critics is the fact that Councils can set rules for the development of local communities to address tree canopy, active transport, heat sink generation and design through their own Development Control Plans.  New Master-planned communities are controlled through DCPs and neighbourhood plans.  The non-progression of the SEPP has no impact on this.  It simply removed the additional layer of reports and controls that the SEPP obliged.

One of the key arguments from industry was that the new SEPP lifted architects and design above all the other important factors which need to be considered by planners.  Some Councils would refuse to even consider a DA until an applicant had subjected their plans to a Design Review Panel.  The Minister’s decision restores design to being an equal of many considerations (along with the economic and social impact; the impact on flora and fauna; the flood and bushfire impact; the impact on first nations culture and matters of culturally significance; not to mention the contribution toward meeting housing supply targets in each LGA.

These are all matters which professional planners (overseen by the Land and Environment Court) deal with every day.  Planners have entire degrees dedicated to their training and professional qualifications.  This training and education teaches planners how to balance up these often-competing imperatives.  The Design and Place SEPP sought to elevate the importance of design to a special place, above other important areas of consideration.  The Minister has now restored the role of this group to be important participants in the process to be considered along side the many other inputs to the planning decision making process.  The Minister’s decision restores responsibility for planning decision-making, to Planners.

An important element of the Minister’s decision was the announcement that applicants need only be obliged to attend one design review process.  They can choose to attend more if they feel that the review process is constructive, or they can simply choose to respond to the issues raised through their own architects and let the planning assessor consider the competing views.  The process of repeat appearances before design review panels had become a costly waste of time, often involving their tier architects making ill-informed comments on trivial aesthetics designed by a top tier architect.  The Minister has advised that those that choose to only appear once before the design review panel will not be compromised for having made this choice.  This will dramatically speed up assessments and reduce costs.

Overall, the decision not to proceed with the draft SEPP is a clear sign that the new Minister for Planning is serious about cutting bureaucratic tape, reduce duplication of process and drive efficiency through the NSW planning process.

The Minister’s decision is a sensible compromise which will deliver on the government’s commitment to sustainability and to achieve net zero greenhouse gas emissions by 2050.  It is keeping the good while dumping the bad.  The decision will support the delivery of new homes while reducing costs. It restores the primacy of planners in the planning process without compromising sustainability.