Managing urbanisation and environmental protection in Australian cities

AuthorPeter Williams
PositionFaculty of the Built Environment, University of New South Wales, Sydney, Australia
1 Introduction

As a country with a federal system of government, jurisdictional responsibility in Australia for planning, environmental protection and land management issues generally resides with its constituent states and territories ( Farrier and Stein, 2006, p. 12 ). Australian states and territories have relied primarily on a regulatory-based statutory planning framework, derived from the traditional British system, to implement planning and land use policy. Australian planning systems are statutory-based in that they are prescribed by various state and territory legislation, including a dominant planning act (in New South Wales the Environmental Planning and Assessment Act 1979). Such statutes in turn impose a series of controls or regulation through a system of land use zoning, development standards, building regulations, subdivision controls, heritage provisions, etc. The dominant source of government planning regulatory power is thus statutory law in the form of overriding planning legislation and subsequent delegated or subordinate legislation such as planning instruments, ordinances and regulations. In addition case law – especially in the form of judicial interpretation of relevant legislation and judicial review of planning decisions – also plays a key role, given Australia's legal tradition as a common law country.

Although the statutory and regulatory emphases remain in Australia – particularly in the form of land use zoning – more recently planning approaches influenced by United States systems of financial and planning incentives have emerged to complement this traditional “command and control” regulation hegemony. Part of a self-styled “smart regulation” package, these seek to give Australian planning systems greater flexibility through the use of market-based mechanisms and financial incentives. These tools include planning bonuses, green offsets and the acquisition of development “rights” that pertain to land. Often these also involve the utilization of traditional common law mechanisms such as covenants and easements. One sphere of application of this hybrid mix of planning approaches and tools is the protection of biodiversity and other natural resource values in areas subject to urbanization.

Problems associated with managing the urban growth of Sydney – particularly from the intersection of dealing with perceived property rights and the protection of natural resources such as biodiversity – are identified in this paper. The singular reliance on traditional “command and control” regulatory approaches as both a cause and ineffectual solution to the problems faced in biodiversity conservation is highlighted and the broader issues are illustrated through several significant case studies.

Expanding this theme, the paper examines the approaches taken to incorporate biodiversity conservation in the management of urban growth in Sydney and more broadly in New South Wales (NSW), Australia's most populous state. These approaches include better informed strategic planning for the identification of areas of high biodiversity value, the implementation of protection mechanisms through statutory and regulatory means, green belts and urban growth boundaries, land acquisition, transferable development rights (TDR), green offsets in the specific form of biobanking, and at a strategic level biodiversity certification.

A critique of the role of these approaches as applied to the integration of biodiversity and urban growth management within the framework of the NSW planning system and the context of entrenched perceived property rights is presented in this paper. Approaches which seek to work with property rights and the property market – TDR, biobanking and biodiversity certification – in addition to “fixed” strategic plans informing traditional regulatory mechanisms such as zoning and other development controls, augmented by common law tools such as covenants and easements, are seen as pivotal and are advocated in this paper.

2 Context – City of Cities and Sydney's growth centres
2. 1 Population growth and housing demand

The context of this analysis of the need for the utilization of an appropriate suite of tools to better integrate biodiversity conservation with continuing urbanization is the metropolitan strategy for Sydney, City of CitiesA Plan for Sydney's Future, released in December 2005 ( DoP, 2005a )1. City of Cities, is “probably the most comprehensive planning strategy that Sydney has had since its first strategy” in 1951 ( Searle, 2006, p. 553 ). However, it was arguably developer-led, being devised in response to heavy lobbying by the property industry, particularly the Property Council of Australia, for a new strategy ( PCA, 2004 ). It certainly bears the hallmarks of a blueprint to satiate developer desire for the further – and possibly the complete – urbanization of the Sydney basin, with the developer vision “writ large across the City of Cities strategy and its supporting documents” ( Searle, 2006, p. 533 ). All major Australian cities have released metropolitan strategic plans in recent years, and so the challenges examined in this paper are not unique to Sydney, and its findings have implications beyond Sydney.

The City of Cities strategy is intended as the plan for Sydney over the 25 years between 2006 and 2031. During this time the city's population is forecast to increase by 1.1 million people, from 4.2 million to 5.3 million. To accommodate this predicted population growth and an anticipated fall in average household size, it is estimated that 640,000 new homes will be required. This target translates to 445,000 new dwellings projected for the existing areas of Sydney, consistent with an ongoing policy of urban consolidation, and 195,000 in greenfield areas, 135,000 of which were to be located in the North West (NW) and South West (SW) growth centres (that is, two new urban release areas), and 60,000 in other greenfield areas ( DoP, 2005a, 2006c ). An additional 25,000 dwellings were originally projected to be built in the growth centres between 2032 and 2041, giving a total dwelling capacity in the growth centres of 160,000 dwellings; this was subsequently adjusted to 181,000 dwellings following the abandonment of proposed “green zones” by the State Government in 2006 (further discussed below).

2. 2 Sustainability of Sydney's urban growth

A pertinent action of the metropolitan strategy in relation to housing is the application of sustainability criteria for new urban development (Action C1.2). Here, proposed land release areas are to be assessed against sustainability criteria and infrastructure funding. As a precursor, a general qualitative assessment of all land identified for release within the growth centres was provided by the then NSW Sustainability Commissioner, Professor Peter Newman in November 2004 ( Newman, 2004 ). This assessment was based on eight sustainability criteria, with a ranking assigned to each criteria ranging from “Poor”, “OK”, “Good to Best”, depending on how well the Sustainability Commissioner believed that the criteria “have been addressed in terms of global best practice for land development and also in terms of accepted practice in Sydney” ( Newman, 2004, p. 1 ).

Criteria 2. Environmental protection, aims “to protect and enhance biodiversity, air, water and agricultural land”. Within this criterion the biodiversity benchmark is to “save core biodiversity values and enhance natural ecosystem of the bioregion”; for water quality it is to “maintain and improve waterway health”; and for agricultural land to “ensure important agricultural land is conserved.” For new land release areas this criterion rates as”:

[…] “good” to “best” practice as one of the major features of the area is the new ways that the environment will be protected however air and water quality limits are approaching so any development has to be very clean ( Newman, 2004, p. 4 ).

Despite the positive ratings of the sustainability criteria of natural resources and environmental protection, two points are of concern. First, in his report the Sustainability Commissioner “raises the question of whether the Land Release areas are needed at all. Is it possible to somehow stop Sydney growing or at least prevent any further fringe growth?” ( Newman, 2004, p. 4 ). Second, it appears that “additional” urban development outside the identified growth centres may be approved if it meets the eight sustainability criteria ( Searle, 2006, p. 556 ), which would undermine the reason for the growth centres in terms of the objectives of the sustainability criteria such as minimizing Sydney's ecological footprint and to protect and enhance biodiversity, water and agricultural land. Evidence of developer pressure for further land releases outside the designated growth centres release areas includes recent preliminary investigations by the Department of Planning into new releases, such as Macarthur South ( Keneally, 2009 ), and Badgerys Creek ( DoP, 2009 ). This is a significant development and places heavy pressure to extend the apparently inexorable growth of...

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