Planning Minister Brad Hazzard

17 July 2013 — An authority on environmental law – former Justice Paul Stein – and the NSW Law Society have voiced concerns about changes to NSW’s planning system, warning that community consultation provisions are inadequate, and that the system could lead to corruption.

In a submission to the government on their planning white paper and draft bill, The NSW Law Society warned that the planning reforms could make corruption easier.

They said they were particularly concerned about the broad range of discretions the planning minister would have.

“[T]he effectiveness of community consultation in strategic planning is undermined by the broad ministerial discretions proposed in the Planning Bill,” the statement said.

“These allow the minister to make plans overriding local and subregional plans without any requirement for the minister to consult and no requirement for the minister to have regard to the relevant strategic planning.

“If one of the purposes of the new legislation is to minimise the risk for actual or perceived corruption in decision-making in the planning sphere, the breadth of the minister’s discretionary powers is of concern.”

The society also criticised the community consultation mechanism – which Planning Minister Brad Hazzard has been spruiking as the centrepiece of the legislation – saying that none of the provisions were mandatory, and the draft exposure bill excluded third party environmental appeal proceedings and judicial review proceedings.

The NSW Planning department said in a response this week that its intention was to “ensure that existing rights of appeal in the current Environmental Planning and Assessment Act are maintained”.

“The Law Society has raised the view that this is not reflected in the new draft legislation,” the statement said. “We recognise the Law Society’s views and will be closely examining them.”

Associate professor at the University of Sydney’s urban and regional planning program Dr Nicole Gurran recently told the Sydney Morning Herald “our reading of the draft exposure bill suggests dilution of existing provisions for consultation around draft plans, with no real mechanisms to enforce consultation provisions”.

Justice Paul Stein raises concerns

The comments echoed sentiments expressed by former influential Land and Environment Court judge Paul Stein, who claimed the reforms would be doomed to failure without sufficient resources to engage community participation.

In his Mahla Pearlman Oration in March, which was in reference to the planning green paper, he implored the government to retain the right of an affected person to make a written submission to the council on a development application and an oral submission to the decision-maker.

“Not to do so will be a retrograde step and send us back to the 1960s in terms of public participation in decision-making,” he said.

The reforms plan to engage community at the strategic level but not at the development level.

“Getting the general public to meaningfully participate at the plan-making stage is a very, very big ask,” said Justice Stein. “It has failed in the past, and continues to, because fundamentally people are turned-off to broad-based, local government-wide plan-making.”

Justice Stein, who is credited as highly influential in the development of the jurisprudence on ecologically sustainable development and made his most influential decisions where for the first time wildlife protection law was enforced against a government authority, said community and councils had nothing to fear from independent assessment panels, if they were appropriately designed.

Following is an extract from his Mahla Pearlman Oration…

The Environmental Planning and Assessment Act was passed into law in 1979 and commenced to operate in 1980. It was landmark legislation that for the first time integrated the environment into planning considerations. Cognate legislation established the Land and Environment Court. Importantly, the EPA Act was big on public participation, well before the Rio Declaration and Agenda 21 established public participation as an ESD Principle alongside such principles as Intergenerational Equity, Polluter Pays, and the Precautionary Principle.

The EPA Act was an elegant piece of legislation and I pay tribute to the drafters and the Government of the day that steered it into law. As the Minister for Planning acknowledges in the 2012 Green Paper, the Act was reforming and innovative. However, it lasted intact only until 1985. Since then, there have been around 150 amendments, usually preceded by the pronouncement that the amendment would make planning decisions speedier, cheaper and easier and, of course, “cut red tape.” We all know that the result was the opposite. The EPA Act has become such a complex web, such a mish-mash, that decisions have become more difficult, slower, and more expensive. The Act has become a statute as complex as the Income Tax Assessment Act. It is very difficult for participants and decision-makers alike to navigate. Kafka would be proud. Many consider the best path is to start again from scratch.

The O’Farrell Government set up an Independent Review Panel of Tim Moore and Ron Dyer to report, which they duly did, contributing a well-reasoned critique and a path forward for reform. The Government response to the Report was to issue a Green Paper on the 14th July 2012, which was open for public comment until late 2012. A White Paper is promised in “early” 2013, but to date it has yet to appear, which means that my remarks will be on the recommendations and suggestions in the Green Paper.

The Green Paper is too broad for me to comment in detail in an address such as this, so I will, essentially, confine myself to two main issues that I believe are of fundamental importance. They are public participation in the planning process and Independent Assessment Panels for development application decision-making. The latter was a suggestion of the Independent Review Panel and is raised as a recommended option in the Green Paper.

The Green Paper emphasises a shift towards strategic planning, with which I agree, it being one of the recommendations of the Hawke Review of the EPBC Act, of which I was an Expert Panel member. One of the Green Paper recommendations on plan-making, which I also welcome, is a high degree of public participation in the plan-making process. The Green Paper also recommends a Public Participation Charter. All good, so far, but getting the general public to meaningfully participate at the plan-making stage is a very, very big ask. It has failed in the past, and continues to, because fundamentally people are turned-off to broad-based, local government-wide plan-making. They only become interested participants if something is happening in their immediate neighbourhood or on the land next door.

So, laudable as the proposal is, it is doomed to failure unless very significant resources are invested in it. Also required will be innovative ways of getting the community genuinely interested enough to actively participate in the process. So far as resources go, local government does not have the financial resources or the expertise to do the sort of work that will be necessary if there is to be any chance of a modicum of success. Having said this, I believe that the proposals for active public participation in plan-making are welcome.

By contrast, the Green Paper says very little about public participation in the decision-making process over local development applications. There is no doubt that this was deliberate and one has to virtually read between the lines to understand that public participation in the DA decision-making process is to be eliminated.

In my experience of public participation in the approval process over thirty 30 years as a Judge, as an Independent Panel Chair and JRPP member appointed by Councils, the participation of the public has enhanced decision-making.

Having the benefit of a succinct written submission supplemented by a three-minute address to the decision-makers enhances the decision-making. It adds value to it and may result in a different decision than the one that is made in the absence of any such submission. This is particularly so when issues of view loss, solar access, overshadowing and privacy are raised. In the absence of public participation these issues may not be apparent to the decision-maker.

If the public are to be denied the right of public participation at the development application stage they will be genuinely aggrieved. If the first they know about a development on neighbouring land is to see the approval on the Council web site, many will be appalled. There are no appeal rights and objectors will have no where to go except to comb through the decision-making process in the hope of finding a defect which will launch a Class 4 Judicial Review in the Court. Even if they win, and the consent is set aside, it will not stop another secret decision being made in which they will have no right to make a written objection or be heard. This is the antithesis of good planning.

It is likely that public grievances over being denied the opportunity to make a submission will fester over time if there is a ban on public participation in the DA process. Reasonable participation by residents does not have to prolong the process if the decision- making is efficient and time limits are observed.

It is not too late for the Minister to right this situation in the forthcoming White Paper. I strongly recommend that he reconsider.

The other issue which is, in many ways, related to public participation in the process is the option suggested in the Green Paper of Councils having Independent Assessment Panels to determine the most contentious development applications, instead of Councillors. In my view, this is not an option to be feared by residents or Councils.

I have Chaired Independent Expert Panels in Manly and Mosman for some years and have, therefore, had first-hand knowledge of their functioning. The model adopted at Manly, and replicated in a number of Councils, is for the Council to appoint an Independent Panel to determine the most contentious development applications. This is in contra-distinction to the Independent Hearing Assessment Panels (IHAPs), which make recommendations to Councils on development applications and arguably add another layer to the development process.

The model which I have followed includes a four person rotating Panel consisting of a legal practitioner as Chair, an architect/planner, an environmental scientist or landscape architect and a community member. With respect to the latter, my experience has been wholly positive. Appointed community members have been sensible individuals with the ability to understand plans and make rational, merit-based decisions. The process is simple. The Council planners submit a comprehensive assessment of the application to the Panel seven days before the meeting. The report is also placed on the Council website seven days before the meeting. In the report the planners make a recommendation as to the fate of the application. The Panel visits each site on the day of determination. Public hearings occur after the inspection, and applicants and objectors address the Panel for three minutes each and answer Panel questions. For the very most part, Panels find this process very helpful in determining the application. The Panel then deliberates in private and its decision is notified immediately on the Council website.

The advantages of the process are that the decision-makers are independent experts and not politicians. The Panel members never get lobbied by developers and objectors, and decisions are made wholly on the merits. There can be no hint of corruption and the Council’s Code of Conduct binds Panel members. The system of Independent Panels also results in more consistent decision-making than Council decisions. It also means that there are fewer appeals from Panel decisions to the Land and Environment Court, thus saving Councils significant ratepayer funds. The savings in appeal costs more than compensate for the costs of the Panel. As I have said, residents and Councils have nothing to fear from Independent Assessment Panels making final decisions on development applications. The use of such Expert Panels means that Councillors can concentrate on making the rules – on the strategic planning, which is so necessary to guide decisions in their local council areas.

In summing up I would say two things to the Minister for Planning. First, retain the right of an affected person to make a written submission to the Council on a development application and an oral submission to the decision-maker. It is not too late to state this in the White Paper. Not to do so will be a retrograde step and send us back to the 1960s in terms of public participation in decision-making. It will have adverse implications, which, I predict, in time will haunt the Government. Second, the White Paper should mandate that Councils appoint Expert Independent Assessment Panels to determine the most contentious development applications.

Adopting these two principles will enhance development assessment decisions that will be made on the merits of the application and free from political influence.