Overcoming the legal impediments to urban planning for sustainability in the Sydney Greater Metropolitan Region

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Urban sustainability is a desired future. The problem investigated in this thesis is how to achieve it, in the context of planning law which applies to residential development and infrastructure in Sydney. Two questions are addressed. First, what is urban planning for sustainability? Second, how can the legal impediments to urban planning for sustainability in Sydney be identified and overcome? The second of these is the research question considered by the thesis, which aims to make a valuable contribution to knowledge about the design of planning processes to facilitate the transition from the unsustainable city, to the sustainable city. The thesis commences with a discussion of the recent international urban sustainability literature. It is argued that planning focussed on protecting amenity or changing density (whether higher or lower), is insufficient for achieving urban planning for sustainability, which is defined as planning intended to reduce the ecological footprint and improve the liveability of the city. An original theoretical framework, comprising a set of eight criteria which form a sustainability planning process, is proposed as a checklist for identifying the legal impediments to sustainability. These criteria are termed Sustainability Planning Elements. The general discussion in the early chapters gives way to particular practical applications of the theory in the latter chapters. Legal research methods and analysis were used to investigate the presence or absence of the Sustainability Planning Elements in the planning laws which apply in Sydney. Any planning instrument, statute or court decision which does not contain the elements is identified as an impediment to sustainability. Conversely, where the elements are present, the law can be regarded as facilitating sustainability. The research findings contained m the thesis are intended to demonstrate how the impediments could be overcome by incorporating sustainability planning processes in planning law. The findings propose methods which include: • modifying the exercise of discretion in the consideration of development proposals; • imposing positive sustainability planning duties; • making planning decisions conditional on an application of the sustainability planning elements; • placing the onus on the proponent to satisfy the decision maker that development approval ought to be granted; • making sustainability a fundamental or primary planning objective.
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