Corinne Fisher, convenor, BPN

13 August 2013 — There we were, thinking, what’s the point of gathering thousands of protestors and reams of legal opinion when it comes to governments legislating over development and mining?

There will be plenty of public consultation, some letting off of steam, and then it will be down to business, with the “social” component of sustainability – that is jobs and economic health – trumping other sustainability outcomes.

But in NSW, in an unprecedented move – certainly in recent history – the director general of planning Sam Haddad has admitted the way departmental staff sold the new planning reforms to the public could have been “inaccurate or misleading”.

Mr Haddad also said that 10.12(2)(b) of the planning reform bill had been subject to a “number of other submissions” regarding its effect on judicial review rights.

“I am also concerned that the effect of that clause may be to reduce the circumstances in which judicial review proceedings may be brought. This is not what was intended and is currently the subject of closer examination by the Department,” Mr Haddad said in a letter to the Better Planning Network on this issue.

The full text of the letter is reproduced below.

In the letter, Mr Haddad said it was proposed to “expand judicial review rights to protect community participation processes”. This was related to failure to notify and exhibit plans for minimum periods –  a provision that did not previously exist.

“The department acknowledges that the current drafting of clause 10.12 has gone further than the government intended,” he said.

We’d already heard from a gamut of legal professionals that the reforms were drafted in such a way that could lead to corruption and diminish community appeal rights.

And we’d heard from the government at community forums that this definitely was not the case.

It’s the last thing the still-frayed nerves of the NSW people need now, as the inquiry into corruption from the previous government – tellingly in matters of mining and development approvals – is still under way. The inquiry been a salacious reading for the hundreds of thousands who became addicted to the daily court proceedings and non-stop media coverage.

In this latest development between community group BPN and the NSW Planning Department, a complaint by BPN, now with 420 member groups, said the Planning White Paper and the Draft Exposure Planning Bill were inconsistent, and that the government had misled the public by stating:

  • the Draft Exposure Planning Bill contained no reduction in judicial appeal rights
  • principles of ecologically sustainable development were enshrined under the sustainable development object of the draft planning legislation
  • there would be little change to the Heritage Council’s role in deciding on development applications in relation to state heritage items

In response, Mr Haddad said: “The department acknowledges that the current drafting… has gone further that the Government intended… I agree that there has been a ‘disconnect’ with the message being communicated to the public and the drafting of the judicial review provisions in the bill.”

He said that there was no evidence there was “intention to mislead or deceive the public”, and regretted if incorrect or misleading information had been “unintentionally communicated”. He said:

I understand your concern is that this statement is false and misleading because not all ESD [ecological sustainable development] principles listed in your letter are identified in the bill.  I note that the principles you have listed are contained in the definition of ESD in the Protection of Environment Administration Act 1991, which definition is currently adopted in the Environmental Planning and Assessment Act 1979 (EPA Act).

The department acknowledges that not all the principles are expressly referred to in the bill.  However, in the department’s view, the Bill does not exclude their application in the planning process. It also considers that the object of sustainable development is broader than ESD because it makes social sustainability a key consideration in decision making about planning and development.

Mr Haddad said that the “department’s response could have been clearer and better worded. I agree that the principles of ESD [environmentally sustainable design cannot be properly described as ‘enshrined’ if not all of them are expressly referred to in the bill. I have asked the department to address this in any future communication on the issue of ESD”.

BPN convenor Corinne Fisher said she was shocked by the admission.

“While we appreciate that the Department’s legal team and complaints process upheld our formal complaint, the Department’s admissions are shocking and should be of great concern to the people of NSW and to the Minister for Planning,” Ms Fisher said.

She told The Fifth Estate that the department was either intentionally misleading the public or that they did not understand their own bill. Either way, it was of great concern.

Greens planning spokesman David Shoebridge said it was most likely the former in regards to judicial review rights.

Sam Haddad

“It is inconceivable that this drafting was an accident given how specific clause 10.12 of the Planning Bill is, the checks and balances that go into to drafting state laws and the fact that literally hundreds of submissions to the Department have made the very same point,” he said.

Ms Fisher said it was not just about misleading the public, either.

“The question is whether the Minister has been adequately briefed?” she said.

Ms Fisher warned that her group’s complaint was “only the tip of the iceberg” regarding misinformation being peddled by the government, and that BPN were not the only ones pointing out inconsistencies.

She called for a full review of inconsistencies between the much-publicised White Paper and the little-seen draft exposure bill.

“We hope that the Minister will support our position and insist on a full review and disclosure,” she said.

“This is very important legislation and the people of NSW have a right to be accurately informed about its effect on communities, environment and heritage. We want the legislation withdrawn, amended and re-exhibited to address the misleading information.”

On the issue of heritage, Mr Haddad said, he acknowledged that the current wording of clause 6.12 of the bill could be interpreted to mean that Heritage Council of NSW role as approval authority under the Heritage Act would be removed. However, he said this was not the intention of the legislation and “the department will move to ensure that this will be clarified in the final version of the legislation”.

However, in cases of delay or conflict between agencies, the DG would take more direct control.

“If the letter was written by someone other than a NSW Planning Official it might have said: ‘Yes, I directly misled the public, the Heritage Council has been sidelined under these draft laws and all their power is transferred to me as the Director General of Planning,’” said Mr Shoebridge.

Following is the text of letter to Corinne Fisher, convenor, Better Planning Network, from Office of the Director General NSW Planning & Infrastructure, Sam Haddad, on 5 August 2013

Dear Ms Fisher

I refer to your letter dated 5 July 2013 in which you made a formal complaint that fepartmental staff have provided incorrect and misleading information about certain aspects of the Draft Exposure Planning Bill 2013.

In your letter you refer to the Department’s ongoing provision of “false and misleading information to the public” which is in breach of its Charter and “amounts to deceptive conduct and maladministration by the Department”.

You requested that the complaint be dealt with in accordance with the department’s complaints handling policy and guidelines which I agree was appropriate, given the serious nature of your assertions.  The complaint has been examined by the Legal Services Branch and their findings form the basis for my response.

The complaint relates to three aspects of the bill which I address below.

Ecologically Sustainable Development (ESD)
Your first complaint relates to a document dated June 2013 prepared by the Department in response to questions from Friends of Ku-ring-gai Environment Inc.  The document states that the principles of ESD are enshrined under the Sustainable Development object of the draft planning legislation, with the key additional inclusion of social sustainability.

I understand your concern is that this statement is false and misleading because not all ESD principles listed in your letter are identified in the Bill. I note that the principles you have listed are contained in the definition of ESD in the Protection of Environment Administration Act 1991, which definition is currently adopted in the Environmental Planning and Assessment Act 1979 (EPA Act).

The Department acknowledges that not all the principles are expressly referred to in the bill. However, in the Department’s view, the bill does not exclude their application in the planning process. It also considers that the object of sustainable development is broader than ESD because it makes social sustainability a key consideration in decision making about planning and development.

However, I accept that the department’s response could have been clearer and better worded.  I agree that the principles cannot be properly described as “enshrined” if not all of them are expressly referred to in the bill.  I have asked the department to address this in any future communication on the issue of ESD.

Finally, while it is regrettable that the department’s response was not better expressed, I want to assure you that it did not intend to mislead or provide false information.

Judicial review rights
Your second complaint relates to statements at public forums by departmental staff that there would be “no reduction in judicial review rights” and that the same information is provided on page 147 of the white paper.

You have drawn my attention to clause 10.12(2)(b) of the bill. The department has also received a number of other submissions about this clause and its effect on judicial review rights. I am also concerned that the effect of that clause may be to reduce the circumstances in which judicial review proceedings may be brought.  This is not what was intended and is currently the subject of closer examination by the department.

The government’s position is that the current open standing provisions in the EPA Act will continue, that is, the “iconic right” referred to on page 147 of the white paper to bring proceedings to restrain a breach of the Act. It is also the government’s position that the existing restrictions on judicial review rights in the current legislation will be carried over in the new legislation, not expanded.

In fact, it is proposed to expand judicial review rights to protect community participation processes.  For the first time, the draft legislation expressly allows judicial review of the failure to notify and exhibit State, regional and subregional strategic plans for minimum periods.  There were previously no judicial review rights in respect of strategic plans as they were made outside the legislation.

The department acknowledges that the current drafting of clause 10.12 has gone further than the government intended.  If a staff member did state there would be no reduction of judicial review rights, then it was a correct statement of the government?s position but one which is not supported by the wording of clause 10.12.  The staff member you specifically mentioned has acknowledged that when a copy of clause 10.12(2)(b) was reproduced by an attendee at the Paddington forum, that person did not appreciate that its wording went further than the government’s position.  I also note that this is one of the most complex and technical areas in the draft legislation, particularly for a non-lawyer in a Q&A forum setting who did not appreciate the full effect of the wording of clause 10.12.

I agree that there has been a “disconnect” with the message being communicated to the public and the drafting of the judicial review provisions in the bill.  However I do not believe that departmental staff deliberately gave incorrect or misleading information, but that they were relaying their understanding of the government’s position.

We also accept that officers at the forum could have been better prepared to answer questions about clause 10.12 and that it would have been preferable for questions about judicial review rights to be answered by Departmental legal officers. The Department will reconsider its future practices in relation to public forums accordingly.

Role of Heritage Council
The third area of complaint is that in my letter to the Sydney Morning Herald dated 2 July 2013, I erroneously stated that there would be little change to the Heritage Council’s role in deciding on development applications relating to state heritage items. I maintain that this statement is correct.

I acknowledge that the current wording of clause 6.12 is open to interpretation that the council’s actual role as approval authority under the Heritage Act will be removed. However, I confirm that is not the intention of the legislation and the department will move to ensure that this will be clarified in the final version of the legislation.

Clause 6.12 of the bill relates to the issue of general terms of approval. In the great majority of cases, the Heritage Council will continue to issue general terms of approval and the director general will have no role in the process. This will be achieved by way of delegation from the director general to the Heritage Council. It will only be in cases of delay or conflict between agencies that the director general would exercise the powers conferred on him under the legislation and take a more active role. To assist, I enclose a copy of a letter dated 19 June 2013 from the minister to the Heritage Council describing how the one stop shop will operate in practice.

When the legislation and broader policy are looked at as a whole, it is expected that in practice, the great majority of general terms of approvals will continue to be issued by the Heritage Council.  Therefore, together with the other matters dealt with in the minister’s letter to the council, I believe that my statement that there would be “little change” in its role is correct.

In conclusion, I regret if inaccurate or misleading information has been unintentionally communicated in relation to the draft Bill and I will ask staff to ensure that this does not occur in the future. There is no evidence that there was any intention to mislead or deceive the public or that any shortcomings in communication caused detriment to the public’s ability to make submissions in relation to these issues.

Mr Haddad asked permission to post the letter from BPN on the department’s website and gave the details of the NSW Ombudsman as Level 24, 580 George Street, Sydney, website www.ombo.nsw.gov.au for assistance with further complaints.

7 replies on “The last thing NSW needs is misleading and deceptive planning laws”

  1. The “consultation” process run by the Department of Planning for the White Paper and planning laws was put together hurriedly, mainly as a result of pressure by BPN and other groups. In that case it’s probably not surprising there has been inconsistent information given out, some accidentally, some maybe deliberately.

    What appears to b remaining constant throughout is the Government’s unwillingnessto include the ESD principles (among others) of biodiversity conservation and the precautionary principle as bases of planning. They appear to think our economy will collapse unless mining and other major developments can push ahead full speed, effectively ignoring natural vegetation or wildlife that may get in the way. If this planning system goes ahead as mooted at the moment it may be possible to protect some old buildings and other cultural heritage, but it’s likely to be much harder to protect remnant ecosystems if they get into developers’ sights. A rethink and redraft of much of the proposed law is definitely needed!

  2. The Director says that the “principles (of ESD) are not expressly referred to..” and that the “bill does not excude their application..” but i am positive that developers will exclude their application when they make applications for developments and they will have a great precedent on their side to say that they need not apply ESD to their developments. The Director also states that the bills go further by including social sustainability. Fine and good but why cant this be an addition to ESD and not used as a substitute for the better control. We must protect the environment or we will have no planet to live on let alone provide economic growth on.

  3. The points raised by BPN were examples of a wider problem. As someone who sat through a number of DoPI presentations on the New Planning System it was impossible to get officials to admit to a number of problems including that some ESD principles had been dropped.

    This was not some side issue it was the issue that Moore and Dyer’s review said should be the key Object of the new Act. It is also not that the Dept can plead that they were unfamiliar with the principles either because they are principles under the current EPA Act.

    It is hard not to conclude sitting in the room listening that the Department was honestly presenting what was in the Draft Bill. Why does that matter – well many people have this view that you can trust what the officials say and certainly talking to some from councils as well as the wider public when you raised the issue the response was that the Department said it was not an issue.

    If there is any intention to involve the community in planning then people have to be told the real situation not some road show line that tries to sell an argument that is not based in what was in the proposed Bill. It makes a mockery of the assertion that the new planning system is going to be any better than the old. And don’t get me started on some of the other shortcomings like how this is more Part 3A than the Part 3A that the government supposedly threw out!

  4. Local communities must unite to oppose the government’s proposals which are just a ‘developers’ charter’.. By all means encourage input to strategic planning but that can’t be an alternative to participation when specific developments are put forward, and rights to object and appeal against unsuitable DAs. The draft legislation elevates economic development above the environment, heritage and sustainability, which need stronger not weaker controls..

  5. I have never seen things as bad as they are in NSW, not only are our rights being legislated away but it is destroying our heritage and our environment. No one is listening, they are telling us that they know what they are doing, they are smarter than the community, and we will get what they want to give us. It seems that we are being overuled by dictators and with no right of reply. It is a sad sad day, because it is going through all tiers of Government, Federal, State and Local, not happy at all. I have never had to fight so hard for what I think is right for the future growth of our communities.

  6. The Better Planning Network is absolutely right.
    The story that Brad Hazzard is telling is NOT what is contained in the draft legislation.
    This legislation if passed will remove existing heritage & environmental controls and concentrate power in the hands of the Minister for Planning.It will NOT return planning power to the community which is the Minister’s mantra.

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