How to make a planning submission

31 October 2018 | Posted In: 134 - Spring 2018, Community Engagement, Planning and Built Environment Issues, Planning in Inner Sydney, | Author: Amelia Thorpe

With development around every corner in inner Sydney, it is likely you might want to raise your concerns about a development. Amelia Thorpe provides some suggestions on how to make a planning submission.

Submissions can increase the quality and legitimacy of planning decisions. Under the Environmental Planning and Assessment Act 1979 (EPA Act), decision-makers are required to take submissions into account. This is meant to improve the quality and the legitimacy of planning decisions, and recognises that members of the public often have ideas and information that can improve planning outcomes.

Making a submission can be important too for what happens after the decision is make. Under the EPA Act, people who made a submission (“objectors”) have rights to appeal the final decision in court in certain circumstances.

Key terms

Consent authority: This is the person (or, more often, the group of people) that will decide whether to approve the development. For smaller developments, this is usually a planning officer in the local council. Larger and more contentious developments go to a Local Planning Panel. For other types of development, particularly really large developments, the EPA Act also provides for Sydney district panels, regional planning panels, the Independent Planning Commission, the Minister and other public authorities to serve as consent authorities.

DA: Development Application. This contains information about the applicant, the site and the proposed development, including drawings and a cost estimate. An environmental impact statement (EIS) or species impact statement (SIS) may also be required. The consent authority makes this information available to the public to enable the making of submissions, usually along with an assessment report prepared by the local council.

DCP: Development control plan. This is a policy setting out detailed requirements for developments on the site (things like building height, setbacks, landscaping and parking). These are not legally binding, but consent authorities follow them, if possible.

Designated development: Development likely to have high impacts (eg likely to generate pollution) or located in an environmentally sensitive area (eg a wetland), as set out in an Environmental Planning Instrument (EPI) or regulations made under the EPA Act.

EPI: Environmental Planning Instrument. This includes a Local Environmental Plan (LEP) (eg Sydney Environmental Plan 2012) or a State Environmental Planning Policy (SEPP)(eg State Environmental Planning Policy (Affordable Housing) 2009). The planning controls in these are legally binding, and the controls in a SEPP can override those in an LEP.

Objector: A person who made a submission objecting to an application for consent to carry out designated development.

Preparing to make a submission

Try to get your submission in by the deadline. If timing is tight, call or email before the deadline to request an extension.

Read the development application and supporting materials carefully. Make notes on parts you like and parts you disagree with, and things that you need to follow up.

Consult. Do your friends and neighbours have stories or examples that can help explain the issues? Are there community groups or specialist groups that might have relevant concerns or expertise?

If there are meetings or briefings as part of the process, try to go along to these and talk to other people there.

What your submission should include

The EPA Act sets out a range of matters for consent authorities to consider when deciding whether to grant approval for the development and whether to impose conditions (section 4.15, formerly 79C). For most developments, these include:

  • EPIs, DCPs, regulations made under the EPA Act
  • Planning agreements. For example, an agreement by the developer to give up some of their land to be used for roads or other public purposes.
  • The likely impacts of the development, including impacts on the built and natural environment, and social and economic impacts in the locality
  • The suitability of the site for development
  • The public interest. This is a very open term, including things like climate change.

These are the only things that consent authorities can consider, so make sure your submission focuses on these. Even though a consent authority might be sympathetic to other concerns, they cannot take these into account.

The key thing the consent authority will be looking for is whether the proposal complies with the relevant planning controls. Is this development permissible on this site? There will often be a table in the report on the DA setting out the relevant planning controls, and whether the proposal complies with these. Look for areas where the proposal does not comply, or where there is only partial compliance. Explain why this matters and what should be done about it. Should the proposal be changed so that it complies or are there other ways the problem can be fixed?

Try to make constructive recommendations about what you would like to see (not just things you oppose). These should be clear and constructive, eg ‘the proposal should be amended so that…’

If consent is granted, conditions will often be imposed. Try to suggest conditions that could improve the development, for example are there trees that should be preserved? Privacy screens that should be added? Better lighting or access arrangements?

Consent authorities are often happy to include these kinds of requests, if possible.

Check the DCP as you think about conditions. If there are relevant standards, the consent authority can’t impose stricter standards. For example, if the DCP allows development up to 6 storeys, there is no point suggesting a height limit of 4 storeys.

Use evidence to support your concerns and recommendations. For example:

  • Stories from the community that explain the likely impacts of the proposal.
  • Government policies and reports, including from other departments or levels of government. Even within a single organisation you can often find policies supporting different positions.
  • Data and statistics, eg ABS information about changing demographics.
  • Scientific studies. If you can’t find these online or in the library, try Environmental Defenders Office NSW: they run a scientific assessment and advice service giving free advice on environmental matters.
  • Examples of best practice from other cities or countries, to show what else is possible and what has been successful.
  • Newspaper articles, webpages and reports by relevant organisations, eg Inner Sydney Voice, Shelter, AHURI, ACF and the Grattan Institute
  • Academic studies, theconversation.com.au is a good place to find academics doing work in the area.
  • Photos and drawings.

If there are things in the proposal that you support, mention these. There may be other stakeholders who want to get rid of things you like so it is important to point out what you support. It also helps to make your arguments seem balanced.

Structure

There is no standard template for a submission.

It is a good idea to include a paragraph at the start explaining who you are and what your interest is. Are you a long-time local resident with knowledge of the area? Are you representing an organisation with particular interests? Do you have any expertise that might be relevant?

The document you are responding to is often useful to structure your submission. Use the headings or categories in it as your headings. You don’t need to respond to all of them, and you can use sub-headings if you have a lot to say about one.

Finish off with a conclusion highlighting your key points, and repeat your recommendations.

Include your name, contact details and the date of the submission. If you are willing to meet with the consent authority or to speak at a hearing, say so.

Style

  • Keep your writing simple and concise. Use headings and bullet points.
  • Make sure you spell out any acronyms.
  • Include references to any sources you refer to.
  • Avoid emotional or abusive language. Don’t spend a lot of time criticising the process to date, keep this brief and focus on what you want to happen next.

Your submission does not need to be long, and will often be more effective if you focus on a small number of key points. In many cases, the decision-makers will not read your submission. Where there are many submissions and/or the submissions are long, a planning officer will prepare a summary of all of the submissions. Keeping your submission short and your recommendations clear will help to make sure your points are properly summarised.

If you do make a long submission, it is a good idea to include a summary at the start, highlighting your key recommendations.

Afterwards

  • Confirm receipt of your submission.
  • Check if there are opportunities to speak to decision makers. Will there be a public hearing where you could explain your key concerns? You might consider calling the contact person to arrange a meeting, or asking for a meeting with your local Member of Parliament to explain your views and seek their support.
  • Share your submission, eg through social media, or sending it to friends and neighbours. This might encourage other people to make a submission too. If others do make a submission, it is better if they use their own words and don’t simply copy yours.
  • Could you use the material in your submission to write a letter or opinion piece for local media to help build support?

It is important to remember that consent authorities are required to consider submissions, but they do not have to follow them. In New Century Developments Pty Ltd v Baulkham Hills Shire Council, the council rejected an application for a Muslim place of worship after receiving some 5,000 objections. The Land and Environment Court overturned that decision and granted approval, as the development was permissible under the relevant planning controls (and the objections were based on unfounded fears and racial prejudice, not planning matters).

A large number of submissions is helpful in demonstrating strong community concern, but will not necessarily change the decision.

Amelia Thorpe is Research Director (Impact and Engagement) and an Associate Professor in Law at UNSW. She lectures in planning law and is the community representative on the City of Sydney Local Planning Panel.

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