Growing houses and trees: integrating biodiversity conservation and urbanisation

• Author: Peter Williams
• Position: Faculty of the Built Environment, University of New South Wales, Sydney, Australia

1 Introduction

Implementation of environmental planning policy and objectives in Australia relies heavily on traditional “command and control” regulation. However, a broader range of innovative tools are now being drafted into the suite of mechanisms at the disposal of planners to manage the environmental and natural resource impacts of urban development. This paper examines the nature, role and prospects of two such innovative mechanisms in Australia. These are first, the use of market-based green offsets schemes, and second, strategic-based statutory planning mechanisms, to compensate for the adverse impacts of urban development. In particular, in Australia the State of New South Wales (NSW) has adopted a biodiversity offsets scheme titled “Biobanking”, and a strategic-based statutory planning mechanism known as “Biodiversity certification”, to protect sites of biodiversity conservation value in Sydney and other urban areas across the state.

Biobanking and biodiversity certification are two relatively new planning tools in NSW. While conceptually different approaches, they are nonetheless designed to work as complimentary mechanisms for biodiversity conservation. In examining how the schemes work conceptually as well as in practice, the case is made for their more widespread adoption to complement traditional command regulation tools such as land use zoning, in order to assist in the task of environmental protection generally, and biodiversity conservation specifically, and so better manage the impacts of inexorable urbanisation. Biobanking and biodiversity certification are beginning to attract considerable attention in Australia. The purpose of this paper is to present an analysis of these two pioneering tools for deliberation by an international audience.

2 Context – planning, development control systems and biodiversity

2. 1 Australian planning systems

Because of Australia's federal system of governance, the Commonwealth (national), six state and two territory governments each have their own environmental planning laws and procedures, and thus separate systems of planning and land-use management ( Farrier and Stein, 2011, p. 19 ). Therefore, there is no single planning system in Australia but nine discrete systems, generally characterised as being regulatory-based statutory planning systems. In other words, each planning system is founded on statutory acts of the various federal, state and territory legislatures (that is, acts of parliament or legislation), and each system has its primary means of implementation or enforcement based in regulation, relying on tools such as zoning, development standards and subdivision and building controls. Land use zoning in particular – “the device responsible for the ‘spatial allocation of land uses’” across a municipal area – remains the pivotal regulatory tool in the statutory planning armoury in Australia ( Stein, 2008, p. 9 ). Planning and development control in NSW (that is, the mechanisms and laws that are in place to control the use and development of land) is typical of the Australian regulatory-based statutory planning approach, operating primarily through the auspices of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”). It should be emphasised that planning and development control is primarily a responsibility of state and territory governments in Australia, as the Australian Constitution does not grant the Commonwealth Government direct control over planning, environmental and natural resource matters ( Farrier and Stein, 2006, p. 12 ), though Commonwealth approval may be required in limited circumstances relating to state-based development applications.

Planning and development control systems based on command regulation is not without its critics. For example, in its 1973 report the Commission of Inquiry into Land Tenures was critical of land use zoning. The Commission of Inquiry concluded that:

Zoning is unsatisfactory as a means of land use control. It is negative or permissive rather than positive or compulsive in its effects, in that it can only prevent particular forms of land use and cannot require land to be developed and used in accordance with planning decisions made in the public interest ( CILT, 1973, p. 65 ).

Nonetheless, in Australia, zoning has long been, and remains, the basis of land use control. The system of planning law in this country based on the production of zoning schemes containing legal ordinances or instruments and zoning maps is essentially derived from the British Town and Country Planning Act 1932. However, while regulation is predominant in Australian planning systems, since the 1980s complementary planning approaches have emerged that are influenced by more recent American systems of financial and planning incentives. These seek to give Australian planning systems greater flexibility through the use of market-based mechanisms and financial incentives, planning bonuses, rights associated with the acquisition of land and development “rights”, and traditional common law mechanisms such as covenants and easements. Thus, each of the planning systems in Australia is a hybrid of the British and American styles, although the statutory and regulatory emphases remain. Indeed, regulation through statutory planning continues to have its advocates for both philosophical and practical reasons. From a conceptual perspective, regulation of development is seen as fundamental to planning ( Dawkins, 1996 ); at the same time, from a practical viewpoint, it is argued that regulation and prescriptive planning controls promote greater certainty and consistency in decision-making ( Walton, 1997 ).

2. 2 “Command” regulation and its alternatives

“The most common form of public control of land use is restriction of private use by regulation” ( Harte, 1985, p. 49 ). The defining character of “command” regulation¹ is its obligatory nature – it involves an authoritative relationship between the individuals or groups being regulated and the government ( Stone, 1982 ). Regulation over the use and development of land has a long history that has established it as a normal “incident” in the exercise of government power, with town and country planning as a function of government evolved initially in Britain as a response to the industrial revolution ( Heap, 1987 ). Pivotal to traditional town and country planning is the preservation and enhancement of existing amenities².

However, from its initial focus on the concept of amenity, modern planning has expanded and evolved its role in response to community changes since the Second World War to incorporate additional areas of public interest including the orderly and efficient provision of services; social planning concerns; and environmental concerns including the protection of the natural environment, the conservation of heritage and the improvement of the quality of life ( Whitehouse, 1993, p. 5 ). In an observation directed to the British planning system, but equally applicable to the Australian case, it has been stated that:

[…] planning plays a central co-ordinating role in environmental management and resource allocation. It is by definition concerned as much with ecology as it is with economics, social sciences, land utilization and politics ( Booth, 1984, p. 8 ).

Potentially, town (or environmental) planning has an enormous influence because it operates by controlling the use of land upon which all human activities are ultimately based. It does that by restricting private property rights through statutory intervention seeking a balance between the right of the private landowner to develop or use land or other resources and the safeguarding of the broader public interest in the protection of the environment and amenity ( Sax, 1983 ). Rights to develop land – to subdivide and build upon land or to change its use – are now generally controlled by planning legislation ( Ryan, 1988 ), as are the rights to extract natural resources both from private and public land; however, the right to decide how to manage the land is still largely unfettered. “Yet the management of land is crucial to its ability to sustain long-term productive activity as well as protect natural ecosystems” ( Bates, 2010, p. 47 ). Planning approaches which encourage the beneficial management of private land from a public interest in the maintenance of environmental quality are therefore necessary. However, regulating the use to which land can be put may have a major bearing on its value ( Day, 1995, p. 13 ), and in any event may be ineffectual in influencing the management of private land. It is here that approaches that make environmental protection financially attractive (or at least not burdensome) to private landowners, can play a role. In this context market-based instruments and planning incentives and other forms of “smart regulation” are pre-eminent.

In general terms “smart regulation” has been described as “that which promises improved environmental performance, but at a price acceptable to business and the community” ( Gunningham and Grabosky, 1998, p. 11 ). Inherent in this approach is the utilization of market incentives – “incentive-based regulation” – involving the application of instruments that will facilitate positive management as an important part of the policy mix to achieve environmental and resource...