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Approaches to the Management of Urban Growth and the Conservation of Natural Resources Peter John Williams University of Wollongong

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Approaches to the Management of Urban Growth and the Conservation of Natural Resources Peter John Williams University of Wollongong University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2011 Beyond command regulation: approaches to the management of urban growth and the conservation of natural resources Peter John Williams University of Wollongong Recommended Citation Williams, Peter John, Beyond command regulation: approaches to the management of urban growth and the conservation of natural resources, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3743 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] BEYOND COMMAND REGULATION: APPROACHES TO THE MANAGEMENT OF URBAN GROWTH AND THE CONSERVATION OF NATURAL RESOURCES. A Sydney Case Study A thesis submitted in fulfilment of the requirement of the degree of DOCTOR OF PHILOSOPHY from UNIVERSITY OF WOLLONGONG by PETER JOHN WILLIAMS BSc UNSW, BLegS MEnvPlan Macq, MPubPol UNE FACULTY OF LAW 2011 Volume 1 CERTIFICATION I, Peter John Williams, declare that this thesis, submitted in fulfilment of the requirements of the award of Doctor of Philosophy, in the Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other institution. ....................................................... Peter John Williams December 2011 CONTENTS Table of Contents i List of Tables vi List of Figures vii List of Maps viii Abbreviations ix Abstract xi Acknowledgments xiii TABLE OF CONTENTS CHAPTER 1 INTRODUCTION – MANAGING GROWTH FOR NATURAL RESOURCE CONSERVATION 1.1 Introduction 1 1.2 Context and scope of Study 5 1.3 Problem statement and questions to be addressed 8 1.4 Study aims 9 1.5 Theoretical and conceptual framework 11 1.6 Growth management mechanisms 13 1.7 Methodology 17 1.7.1 Qualitative Research 17 1.7.2 Utilisation of participant interviews 21 1.8 Study outcomes 21 1.9 Themes and structure 22 1.10 Conclusion 25 CHAPTER 2 GROWTH MANAGEMENT, NATURAL RESOURCE CONSERVATION AND ENVIRONMENTAL PROTECTION 2.1 Introduction 28 2.2 Natural resources, the environment and ESD 29 2.3 The fringe, natural resources and growth management 39 2.4 The significance and problems of the fringe 48 2.4.1 Why the fringe should be protected – agricultural values 48 2.4.2 Why the fringe should be protected – conservation value – protection of natural and cultural heritage and landscapes 55 2.4.3 Why the fringe should be protected – pollution, waste and water quality 60 2.5 Solutions for the fringe – growth management 62 2.6 Conclusion 72 i CHAPTER 3 PROPERTY RIGHTS, REGULATORY THEORY AND PROBLEMS FOR PLANNERS 3.1 Introduction 73 3.2 Private property and its rights 76 3.3 Property rights theory 78 3.4 Property rights and the common law 86 3.5 Land tenure and planning regulation 88 3.6 Acquisition of property rights 95 3.7 Regulatory theory and planning ‘command regulation’ 98 3.8 Planning regulation, property rights and takings 103 3.9 Injurious affection, compensation and betterment 109 3.10 ‘Smart regulation’ 118 3.11 Conclusion 126 CHAPTER 4 APPROACHES AND MECHANISMSFOR URBAN GROWTH MANAGEMENT AND NATURAL RESOURCE CONSERVATION 4.1 Introduction 128 4.2 Strategic and policy approaches 130 4.2.1 Conceptual basis of strategic planning tools in urban growth and natural resource management 132 4.2.2 Strategic planning tools for urban growth and natural resource management in Australia 139 4.2.3 Catchment management in NSW 147 4.2.4 Strategic planning problems – implementation and coordination 152 4.3 Regulatory approaches 155 4.3.1 Conceptual basis of regulatory instruments applied to urban growth and natural resource management 156 4.3.2 Development control/statutory planning 157 4.3.3 Land use zoning and development standards 158 4.3.4 Urban containment – growth boundaries and green belts 161 4.3.5 Community title subdivision 165 4.3.6 Right-to-farm legislation 166 4.4 Market-based and economic approaches 167 4.4.1 Conceptual basis of fiscal and market-based tools 168 4.4.2 Fiscal and market-based tools and property rights 170 4.4.3 Tradeable development rights 172 4.4.4 Covenants 176 4.4.5 Offsets 178 4.4.6 ‘Smart regulation’ tradeable rights and offsets compared 183 4.5 Conclusion 184 CHAPTER 5 THE COURSE OF STRATEGIC PLANNING AND GROWTH MANAGEMENT IN THE SYDNEY REGION 5.1 Introduction 186 ii 5.2 Early ‘town and country’ planning in Sydney 187 5.3 The County of Cumberland Plan 189 5.4 The Sydney Region Outline Plan 198 5.5 Sydney Into Its Third Century 204 5.6 Cities for the 21st Century 209 5.7 Shaping Our Cities 217 5.8 The need for a new strategy for Sydney 218 5.9 City of Cities 219 5.10 Guiding the size, shape and function of Sydney? 227 5.11 The course of statutory planning reform – the Environmental Planning and Assessment Act 1979 230 5.12 Conclusion 235 CHAPTER 6 MANAGING THE SYDNEY FRINGE – REFORM OF THE PLANNING AND NATURAL RESOURCE MANAGEMENT SYSTEMS 6.1 Introduction 237 6.2 The Sydney Region – Who is responsible? The failure of institutional and policy reform 239 6.2.1 The State Plan 241 6.2.2 Administrative responsibilities 243 6.2.3 The Natural Resources Commission 247 6.3 Land use planning reforms – PlanFirst and its aftermath 249 6.3.1 The PlanFirst White Paper 250 6.3.2 The Plan First Review Task Force 251 6.3.3 The abandonment of PlanFirst 253 6.4 Catchment management reform 254 6.4.1 The role of catchment management authorities 255 6.4.2 The Hawkesbury-Nepean Catchment Management Authority 258 6.4.3 Catchment management and local government 260 6.4.4 Office of the Hawkesbury-Nepean 263 6.5 Biodiversity conservation reform 264 6.5.1 Biodiversity certification 264 6.5.2 Biobanking 269 6.6 Resolving a fragmented regulatory landscape? 271 6.7 Conclusion 275 CHAPTER 7 RECENT STATE GOVERNMENTAPPROACHES TO URBAN GROWTH MANAGEMENT IN SYDNEY 7.1 Introduction 276 7.2 Strategic land use planning 277 7.2.1 The Metropolitan Strategy and subregional planning 278 7.2.2 Maintaining urban growth boundaries and Sydney’s Growth Centres 279 7.2.3 Regional Strategies 284 7.3 Biodiversity certification 285 7.3.1 Biodiversity certification and the Growth Centres 286 7.3.2 The prospects of biodiversity certification 292 iii 7.4 Biobanking and Biodiversity Offsets 295 7.4.1 The Biobanking Assessment Methodology 296 7.4.2 The prospects of biobanking 301 7.5 Zoning, development control and the Standard Instrument (LEP) 304 7.5.1 The Standard Instrument (LEP) 305 7.5.2 The Environment Protection Zones 308 7.5.3 Acquisition and compensation in the E zones? 311 7.5.4 Environment protection zoning – a Departmental view and response 316 7.6 Other methods of acquisition of land and development rights 318 7.6.1 Compulsory acquisition of future urban land and betterment 318 7.6.2 Conservation covenants – the Nature Conservation Trust 321 7.6.3 Transferable development rights 324 7.7 Managing Sydney’s catchments 326 7.7.1 Catchment health and environmental flows 326 7.7.2 The Metropolitan Water Plan 329 7.7.3 Reliance on the statutory planning system 331 7.7.4 The Sydney drinking water crisis 334 7.7.5 The Sydney Catchment Authority 337 7.7.6 Sustaining the Catchments Regional Plan and the Drinking Water Catchments REP 343 7.8 Conclusion 348 CHAPTER 8 RECENT LOCAL GOVERNMENT APPROACHES TO URBAN GROWTH MANAGEMENT IN SYDNEY 8.1 Introduction 350 8.2 Local strategic planning 351 8.2.1 Wingecarribee Shire Council 352 8.2.2 Shoalhaven City Council 355 8.2.3 Hornsby Shire Council 356 8.2.4 Penrith City Council 357 8.2.5 Camden Council 361 8.3 Zoning and other statutory development controls 366 8.3.1 Zoning, development standards and LEP overlay mapping 366 8.3.2 Other local controls on development on the urban fringe 378 8.4 Local incentive schemes 379 8.4.1 Biodiversity offset schemes 379 8.4.2 Transferable development rights 383 8.4.3 Financial incentives and subsidies 384 8.5 Conclusion 385 CHAPTER 9 A WAY FORWARD: BEYOND COMMAND REGULATION? 9.1 Introduction 387 9.2 Summary of findings and reflection 389 9.3 Conclusions and key suggestions 401 9.3.1 Underlying themes 401 9.3.2 The need for strategic planning 402 iv 9.3.3 Confronting property rights 404 9.3.4 Utilisation of a suite of tools 406 9.3.5 Implementation and coordination 408 9.4 Beyond command regulation? 409 BIBLIOGRAPHY I APPENDICES (VOLUME 2) Appendix A: Overview of the NSW statutory planning system Appendix B: Wollongong University Human Research Ethics Committee (HREC) documentation in support of thesis research Appendix C: Department of Planning, ‘Environment Protection Zones’, LEP Practice Note 09-002, issued 30 April 2009 Appendix D: Hawkesbury Local Environmental Plan 1989, Clause 11 – Rural subdivision – general provisions Appendix E: Wingecarribee Local Environmental Plan 2010, Environment Protection (E1 – E4) Zones Appendix F: Signed interviewee consent forms and transcripts of interviews conducted for thesis v LIST OF TABLES 1.1 Growth management approaches and mechanisms 15 1.2: List of Participating Organisations and Officers/Office-holders 19 2.1: The environmental and resource management toolkit 34 7.1 Sydney’s Growth Centres – Protected Lands 287 7.2 Standard Instrument (Local Environmental Plans) Order 2006 – Standard land use zones 306 7.3 Summary of Departmental guidance on the Environment Protection Zones 310 8.1 Extract from Shoalhaven Local Environmental Plan 1985 355 8.2 Extract from Draft Hawkesbury LEP 2009 Zone Conversion
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