LAWS540/LAW861: Local Government and Planning Law - Discussion

This document provides answers to discussion questions related to Local Government and Planning Law (LAWS540/LAW861). The questions cover various aspects of planning law, including its role in natural resource management, challenges to environmental protection, politicization of planning and development law, and the role of law in regulating planning. Further topics include the relationship between planning instruments, zoning, and development assessment; the purpose of planning and the importance of theoretical frameworks; the influence of political ideology on planning law; the significance of environmental values in decision-making; the connection between planning law and other areas of law like property law; non-environmental factors shaping planning decisions; the concept of ESD in relation to planning; objectives of the legislative scheme; types of planning instruments; and the development assessment process. The document also discusses the importance of characterization to the development assessment process and the relationship between development assessment and planning instruments.

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Local Government and Planning Law
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Local Government and Planning Law
1. How is planning law an exercise in natural resource management?
Planning law provides a means for legal control over land use and also provides
opportunity for allocation of land to areas that are best suited for a certain activity. However,
since land planning and land use is not retrospective, much responsibility relies on land owners
to initiate and maintain regulations over their lands. Land law may only deal with making
propositions for changes on laws regarding change land use.
Land use planning statutes involve striking a balance between economic, environmental
and social needs of the community, to make sure that the demands of the rights of private land
owners are in harmony with the law, as well as the government policies.
The role of government in setting out policies and giving direction on the right of the
community to contribute into policy formulation is relative, as it depends with the level of the
cases at hand. Some private land owns tend to be strict when it comes to external policies
regarding their land use.
However, it is not possible to have every property owner set their rules and regulations
over use of their property. Land use and planning law will definitely help in ensuring that there is
there is good management of natural resources.
Furthermore, statutory land use planning statutory also allows for in-depth community
consultation, something which affords opportunity for the community’s involvement in
development of responses to the ongoing degradation of natural resources. This gives a basis for
responding to this situation so as to ensure that the rampant degradation does not lead to loss of
biodiversity.
2. What do you think are some of the challenges to current and
future protection of the environment?
Local government are poorly equipped and they cannot effectively respond to issues
arising in management of natural resource. Local government capacity is dependent on the size
of the council staff and their finances. Another challenge is that local government lack finances
to undertake management of natural resources appropriately. Additionally, the planning
processes implemented by the catchment management authority are discordant with the strategic
and statutory planning strategies implemented by the local government.

Local Government and Planning Law
3. Is planning and development law and policy over politicized?
Environmentalism today clearly looks back to the social movement origins that always
seeks for a clear political perspectives which include government actions and regulations.
However, much of what has come to be known as “modern environmental movement” have
become overactive in calling out for recognition by the government, thereby leading to much
politicisation of planning and development law.
4. At the commencement of this course, what role do you think
planning law may play in protecting the environment?
The planning law regulates the establishment of zones that land usage in geographic
areas. However zone categories have a wider scope, and would only a general land usage.
Additionally, planning law allows for many opportunities using the available controls for
management of natural resources. For example, Environmental Significance Overlay mandates
local governments to protect and manage natural resources and biodiversity, landslides and
erosion. Furthermore, planning law exists to prevent land degradation.
Week 2
1. Outline the relationship between planning instruments, zoning and
development assessment.
Local Environmental Planning guides the making of decisions for local government
management. This works through development assessment and zoning, which provides for a
framework for land use. Planning instruments are the main planning tools used to shape the
future of communities and also ensure that there is local development. In summary, planning
instruments, working through development assessments and zoning instruments are used foe
effecting land used.
2. What is the purpose of planning? Why is a theoretical framework
important?
Planning is an integral part for each local government. Proper planning is a guide to
development and protection of natural resources. This may include waterways and nature parks.

Local Government and Planning Law
A theoretical framework is important because it allows consent authorities and councils to effect
land management. Theoretical frameworks are developed by councils and are confirmed by
delegates for planning in the ministry of planning. .
3. Are we living in an era of neoliberal planning?
Yes we are. Planning from a modern perspective is concerned with formulation of
political and public decisions regarding land planning in a manner that is rational and consistent
with public interest. However, rational planning, looking at it from a modernist perspective has
always been challenged by the postmodernist perspective. More recently, the modernist panning
has also found a new enemy called neo liberal perspective. Neoliberalism has much to do with
planning in this age, and surely we are living in an era of neoliberal planning.
4. Is the direction of planning law and policy influenced by political ideology?
Yes it is. The planning law act requires that all local government areas be to be subject to
planning scheme statutes. Furthermore, planning schemes are subject to legislation and are
directly under the government in the Ministry of Planning. Political ideologies, in a number of
ways, influence planning law. Therefore, it is not an over-emphasis to conclude that political
ideologies influence planning law.
Week 3
1. What is the role of law in regulating planning?
Planning schemes requires provisions of law to allow for destroying or removal of
vegetation in cases whereby land is more than 0.4 hectares. For example the Mineral Resources
Development Act 1990. Planning schemes provide that all timber producing companies comply
with forest code practices as provided by the Natural Resources and Environment. Planning law
makes sure that all land use and activities related to environmental are regulated. Furthermore,
planning, either land use of environment related cannot be properly set out without law.
2. Why are environmental values important to decision making in the context of
planning and development law and policy?
Natural resources development has emerged to be an important factor in management of
natural resources. Environmental values are important when it comes to land usage and

Local Government and Planning Law
development of policies and law. Environmental values are important in ensuring that planning
laws are implemented and well adjudicated since the values help in instilling discipline and self-
motivation to people. For example, there are places where people believe that it is not safe to cut
certain kind of trees. Such values end up protecting the environment and developing law and
policy.
3. How does planning law relate to other areas of law, for example property law?
How can environmental and property values be reconciled?
Both laws allow for management of resources and have provisions giving directions and
guidelines on what is supposed to be done in case of and development. Again, there is an
element of integration of community values in both. The community plays a big role in shaping
both environmental laws and property laws. Furthermore, both environmental law and property
law regulation and management of particular features.,
WEEK FOUR
1. What are some of the non-environmental factors that shape the
direction of planning decisions?
Some non-environmental factors include the actions of the government, that is, the ability
for governments to reserve land for public services. Government may also decide to employ
mechanisms such as land may be fractured through incentives for good usage. Political
ideologies is another non – environmental factor that shapes planning decisions. Lastly, the
legislature may make amendments to the law that may bring changes to the planning decisions.
2. How is the concept of ESD related to planning?
ESD principles are employed to avert negative effects on the environment and
enhance planning process. Furthermore, ESD will encourage easy planning and decision making
in order to enhance a positive environment. ESD advocates for the following interventions:
i. optimizing site potential
ii. Minimization of consumption and non-renewable energy
iii. using environmentally friendly products
iv. using energy and water efficient appliances
v. reducing potable water use

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vi. enhancing indoor environmental quality
vii. Optimizing operational and maintenance practices.
3. What are the main objectives of the legislative scheme? Discuss which objective
is the most important and why?
There are many objectives of the legislative scheme. Many of these include
i. To maintain justice
ii. To maintain the law and all its provisions
iii. To solve conflicts through the litigation process
The most significant objective of the legislative scheme is to make laws and regulations,
and effect amendments to the law, in order to promote democracy and rule of law. Regulations
are requirements that are mandatory and which may apply people, organizations, the government
and, NGOs.
Week 5
1. What are the different types of planning instruments relevant
to land use control under the EPA Act?
There are three main types of planning instruments that are used by LEP to control land
use. For facilitation of the vision envisioned in its Strategic Plans, the EPA Act provides for the
following planning instruments:
i. Environmental planning instruments (EPIs)
ii. Local Environmental Plans (LEP)
iii. State Environmental Planning Policies (SEPPs) and
2. Locate and describe the legal authority in the EPA Act to
create EPIs.
The EPA Act is administered by the department of planning and environment (DoPE).
EPA, through the ministry of Natural Resources and Environment, provides for the
creation of Environmental planning instruments (EPIs). The source of this legal authority is the
government, through its legislature.
3. Is planning law ‘interventionist’? Should private interests trump
public?

Local Government and Planning Law
No. planning is not interventionist in nature, it is rather naturally occurring. Land use and
planning law has a regulative role in relation to land use and construction. Therefore, planning
law cannot be intervened with, since it is established by the Environment and Planning Act.
Initially, the government had proposed to abolish local land-use planning so as to replace them
with a by-law system.
4. Explain the difference between fixed and non-‐fixed (flexible) regulatory
instruments and the respective advantages of each.
Fixed regulatory instruments cannot change while non-fixed regulatory instrument are
subject to change over time. Non-fixed laws are ‘rules of conduct which, in principle, does not
have a binding force but which may not nevertheless have so much practical effects’ on the
other hand, Fixed laws do not have innate desire to conform to social norms so as to produces a
sincere and genuine compliance.
Week 6
1. Describe, in general terms, the development assessment process.
What is the legal (i.e. relative legislative) source of this process?
The Development Assessment process i is the statutory instrument between the rules
governing the Minister to facilitate the process of development assessment. The legislative
source of this process is the provisions provided under the Planning Act of 2016. Below is the
development assessment process, which happens in the following order
:
i. Pre-application
ii. Application part
iii. Information request part or referral part
iv. Decision part
v. appeal
2. Discuss the relationship between the development assessment process
and planning instruments – how can changes to EPIs give effect to
development policy.

Local Government and Planning Law
Planning instruments are formulated to aid in guiding growth, change and development
in every area. They take into account the interests of the state planning as per the outlined
planning instruments. Planning instruments define what the state government has identifies as
critical, planning matters while process development assessment offers a foundation to improve
the process validation, and verification process.
Changes in EPI can enhance policy development as the EPI is directly over the policy
development process.
3. What is the importance of ‘characterization’ to the development assessment
process?
Process characterization is essential in effecting development assessment process. just
as characterization is important in enabling the commercialization of new products in the
industry, so is characterization important in hastening the process. For commercialization of
drug product, manufacturers have to validate the manufacturing process of the drug. For this
case, characterization ensures that the development assessment process is seamless.
Week 7
. What is state significant development and infrastructure? Give
examples of each and where to find such information.
The state significant development infrastructure represents the process and means of
ensuring all land preservation procedures are handled within planning laws.
The information can be found in the local authorities.
2. should the environmental criteria provided in the EPA Act (and other
planning instruments) for State Significant Infrastructure be stronger?
Some types of infrastructure in the state government are significant because of size and
economic value. Architecture that is significant to the state may include key transport services
that have a wide impact and significance to the local area. State Significant Infrastructure is
marked in the State and Regional Development State Environmental Planning Policy. Hence, the
environment criteria provided in the EPA Act should be stronger.

Local Government and Planning Law
3. Discuss the role of the Land and Environment Court as an overseer of major
projects assessment and approval.
The Land and Environment Court was initiated in 1980 as a superior. It was mandated to
to determine disputes that arise from “environmental laws". Environmental laws provide for
protection of environment. LEC is also responsible for making judgments on cases involving
land usage.
Furthermore, LEC ensures that land degradation is avoided and biodiversity is conserved.
Week 8
1. Discuss the instrumental role played by the LEC in promoting
environmental planning law in NSW?
LEC was created to address planning of provisions such as Infrastructure and
environment protection. The effect of LEC is o to take power away from councils allow
development. SEPPs. LEC handles all conflicts that have to do with land planning and land
usage. Furthermore, LEC ensures that all decisions that are made by the local area governments
are in conformity to the established provisions of law.
.2. What is the significance of open standing provisions?
Open standing provisions are non-regulatory mechanisms that manage education and land
management. These provisions are formulated so as to increase incentives for land usage. Open
standing provisions are used to cover breaches related to environmental legislation.
In summary, the open standing provisions provide for effective management of
environmental laws.
3. What is the general rule in judicial proceedings relating to costs? How
might he costs rule under the Land and Environment Court Act assist third party
litigation?
The general rule in judicial proceedings states that ‘costs follow the result.’ A party does
not have legal right to costs, except as there would only be a reasonable expectation for their
receivership, subject to the discretion of the in that regard. This rule may assist third party
litigation in that they will not have to worry about costs, as the cost rule can only apply after
results.

Local Government and Planning Law
4. What are the various ways that planning conflicts may be resolved?
Conflict resolution is used so as to supplement, and, in many cases, complement the
decision-making processes at all government levels.
Planning conflicts may be resolved in the following ways:
i. By involving the local authority
ii. By using litigation processes using the Land and environment Court
iii. By dialogue
Week 9
Who should have responsibility for environmental assessment – state
or federal government?
State Government authorities are generally allowed to carry out environmental
assessment. Federal governments may not have the capacity to carry out environmental
assessments since they are not financed properly. I think the state government is in the most
vantage point to carry out environmental assessment as opposed to federal government.
2. Describe the one stop shop policy. What are some
potential concerns from the perspective of environmental credentials of this
policy?
A One-Stop Shop policy was formed in order to regulate state planning system in its
provision of the environmental law. It was formed to assess the environment in accordance to
the planning instruments that are provided by the EPA Act. The federal government of
Switzerland has especially implemented the one stop shop policy.
3. Read the bilateral agreement between NSW and the Commonwealth
government. How does this agreement give effect to the one stop shop
policy?
The bilateral agreement between the Commonwealth of Australia and NSW concerning
the assessment of environment allows the government minister to assess environment impact
process. This agreement further gave the one stop shop policy an impetus that will make the
policy more effective. It makes the policy applicable to the populations.
The agreement makes implementation of this policy easier.

Local Government and Planning Law
4. What guarantees exist that Federal measures are more effective?
The willingness of Federal Government to approve “one-stop-shop” shows that the
federal measures are more effective. Especially the bilateral agreement between the
Commonwealth of Australia and NSW has made the federal measures to be more effective. The
bilateral agreement makes the assessment of environment allows the government minister to
assess environment impact process, which further makes the federal measures more effective..
Week 10
1) Why are biodiversity values, an important factor in land use
planning and development?
Some of the major values of biodiversity are as follows biodiversity values include:
i. Ethical and Moral Value
ii. Ecosystem Services
iii. Economic Value
iv. Productive Use Value
v. Biodiversity is nature’s best gift.
vi. Consumptive value
The value of biodiversity in both and animal life is beyond comprehension.
2) What is meant by ‘offsetting’? Outline the intended benefits and
potential drawbacks of offsetting as a policy in relation to biodiversity
preservation.
Protection of the environment so as to avert loss of biodiversity is the main role of the
government. The government may use measurable conservation actions that are designed to
compensate for resultant impacts, in addition to prevention and mitigation measures that are
already implemented. These efforts entail what is known as offsetting. One major drawback of
offsetting is lack of clarity on their meaning, design and implementation. Another drawback is
that they do not have a proper description of the mechanisms to use them effectively.

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3) What needs to be taken into account when considering proposed
biodiversity offset options?
Firstly, the offsets must be obviously clear, that is easily understandable. Furthermore,
they should have a definite and concise description, such that those applying them find it easy to
do so. Again, the government should revaluate the proposed biodiversity offsets, and task well
knowledgeable people to implement them. .lastly, it should be remembered that these offsets are
not laws, so there should always be a balance between them and the established laws and
regulations.
Week 11
1. Explain the difference between mitigation and adaptation to
climate change? What are the restraints upon any given local
government implementing effective climate change policy?
Adaptation and mitigation differ, especially in objectives. While Mitigation is concerned
with the causes of climate variation, adaptation is concerned with assessment of the impacts
influencing climate change. Government should especially ensure that they have involved the
public before implementing any climatic change policies. The local government should also do
enough sensitization and awareness so as to avoid unnecessary conflicts.
2. What measures can be taken at the local government
level (through planning regulation) to minimize risk of climate related
impacts?
There are many actions that the government can take in order to minimize risks related to
climate change. These include:
i. The government can embark in:
ii. Sanitation of the public
iii. Planting more trees
iv. Banning environment destroying habits
3. Does climate change represent a paradox from the perspective of
land use planning law and policy?
Yes it does. While efforts are being made to conserve the environment and curb land
degradation, it is a paradox that climate change still continues to be a critical issue. Climate

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change is expected to be affected by changes in the environment, yet, planning law and policy
does not seem to have any impact as to affect climate change. Climate change and planning law
does not have a direct relationship with climate change.