RMB Articles

Let the debate begin

The introduction of the new Planning Bill and cognate legislation into the NSW Parliament this past week stirs mixed emotions. It is clear that the current bureaucratic system of planning regulation in place for the past 30 years has failed to facilitate the easy ‘yes’ that the development industry has constantly argued for.  The improvements to the planning system in the Planning Bill will deliver greater certainty and should assist that sector in being able to deliver built form outcomes. But whether or not the new system proposed in the Bill will deliver on the Coalition’s promise of 2009 to ‘return’ planning controls to local residents through their councils is the more interesting question. At first blush it seems that Macquarie Street, and not City Hall, will have the more dominant voice in the new system. The voice of the local community has been marginalised further by the diminished role identified for Councils in the new system. By the design, the legislation has silenced the voice of the community by sidelining it to the strategic, not process, end of the spectrum. We are a long way from the McKell vision of the 1940 which was to make town and country planning democratic.

In his second reading speech on 22 October, 2013 the Minister makes a virtue of the number of submissions that have been received over the course of the consultation process. In his view, the 6000 submissions were ‘a good sign.’ The Bureau of Statistics, http://www.abs.gov.au/Ausstats/abs@.nsf/Latestproducts/3235.0Main%20Features42012?opendocument&tabname=Summary&prodno=3235.0&issue=2012&num=&view=   advises that NSW has approximately 8 million people. On my calculations, 6000 submissions represents only .075% of the NSW population. Even assuming the total adult population to be half that number, that increases the contribution rate to a lousy 0.15%. It is a poor response to this most vital reform. On any person’s measure, that is a failure of engagement. Perhaps the Minister saw it as a good sign that the people did not want to get in the way of the Government’s reforms? This may be important because the Government clearly wants to re-energise the economy. It estimates that just by delivering on this reform, some two to three billion dollars will be released into the economy.  Already, new housing starts are at their highest since 2004. The Minister says that since March 2011 the Government has approved over ‘$37 billion worth of major projects.’ The theory seems to be that through a relaxation of the red and green tape that presently ties the hands of the development sector, a building revolution will occur. Through the operation of the market, order will emerge organically as the disparate areas of the state adjust to change.

The Government says that it has listened. In the feedback report http://www.planning.nsw.gov.au/en-au/policyandlegislation/planningforourfuture/howwelistenedtoyou.aspx  the Government says that: ‘In our new system, no one will lose their legal rights they have today. The community will be able to legally challenge any decisions that do not comply with their planning code.’ This is technically correct, but what it doesn’t highlight is the way that the community voice has been silenced by removing from local councils many of the assessment tasks now routinely performed at a local council level. In NSW, since 1919, every developer has had the right to contest a ‘no’ by seeking a merit review of the council decision. The design of the system, continued in the 1945 reforms, retained in the 1979 Act and affirmed in the Planning Bill, is that if you get a no out of the system, then you could take that determination to the court for a reassessment on the merits.  The community has never had the same right, usually called a ‘third party review.’ Historically, the community has had to rely on its elected representatives to deliver the ‘no’ so as to activate the merit review system. Under the new Planning System, all that will be produced is ‘yes.’ By restricting the opportunity for the system to deliver a ‘no’ it means that the voice of the community has necessarily been lessened.  Having a right to legally challenge a decision is only part of the checks and balances process. A good administrative ‘yes’ will be beyond legal challenge. The Government knows this because Judicial Reviews of administrative decision-making has never been designed to equate to a merit assessment of a proposal.  The focus of these types of legal challenge is the way in which the decision was made, not the underlying merits of the decision.

What became a feature of the current planning system was the way the community could deal itself back into the development debate if it could persuade the local council to exercise its right to refuse consent.  ICAC notes in its 2007 position paper Corruption risks in NSW development approval processes that merit reviews can provide a safeguard against corrupt decision-making. With that avenue of review now removed, I just wonder how happy the community will be with its brand new Planning System? Only time will tell.

Grant G