Planning Law Review

I received a letter from the Senior Commissioner of the Land and Environment Court, Tim Moore, that he and the former Minister for Community Services, Ron Dyer, had been appointed by the State Government to undertake a review of the planning system in New South Wales.  Mr Moore and Mr Dyer are currently seeking the views from a variety of stakeholders with a view to replacing the Environmental Planning and Assessment Act, 1979 by legislation.

In a formal submission to the review, I have responded to Mr Moore advising that whilst I am happy to provide whatever input and assistance he and Mr Dyer might require, I have suggested that they go back to the original legislation as enacted in 1979 as a first step.  Examine that legislation without the myriad of legislative changes that followed its enactment.

It is my view that the Act, as originally enacted, was a fine piece of environmental and planning legislation. However, much of it was changed and tinkered with by the legislature where members of Parliament were often seeking political solutions rather than planning solutions. Proper planning often came a poor, and distant, second.

It has long been my view that with many of the amendments to the Act over the years, the government of the day was seeking to avoid the environmental scrutiny of its decision-making processes and, as a result, many of those changes had the effect of detracting from the very premise of the original legislation.

I have offered for consideration the following two points:

• Previously applications for the construction of new homes or alternations did not require development consent. All that was required was a building application. These applications on the whole were dealt with promptly and not tied up with the development application processes. When the decision was made to repeal the building application regime in the old Local Government Act, normal housing matters were required to be dealt with as development applications under the Environmental and Assessment Act.  This decision resulted in considerable delay, either because of the additional requirements involved in determining development applications, or alternatively, the applications were in the same queue with a number of other development applications which could have difficult or complex aspects. Whatever the purpose of the legislative amendment, what I referred to was the practical reality of those changes.
• The original legislation always provided a mechanism for the State Government to call in development applications, which were determined to be of regional or state significance. The Government was entitled to do so, but the processes involved in the assessment of those development applications required not just public input, but also public scrutiny. Provision was made for a Commission of Inquiry that would then report to the Minister for the determination of the application. Despite the controversies that often occurred with applications of this nature, a Commission of Inquiry that was seen to be independent, provided for an appropriate and open mechanism for the community to have input. The Minister of the day then had a firm basis for making his or her determination and even if the public was dissatisfied with the result, a forum was provided to give the public the opportunity to voice opinions, and the determination by the Minister was not seen to be political, even if it was.

The reason governments did not like Commissions of Inquiry was that planning officers, and no doubt the political interests of the government of the day, did not like public scrutiny of the deliberations.  Nevertheless, these commissions provided good planning outcomes, even when the government of the day engineered those outcomes.

I fundamentally believe that elected Councillors are well qualified to make decisions on development applications because of local knowledge. Councillors are, in theory, able to know what the impact of a proposed development is and should be able to formulate conditions to minimise adverse impacts.

Many of the problems that arise relate to needing to confine councillors to considerations under Section 79C. It is my view that if councils debate a development application and argue over matters that are irrelevant to Section 79C, then any council decision must fail to meet what the Act intended and therefore the decision miscarries.

Councillors need to be accountable for taking into consideration only those matters that the law permits. This is an issue that somehow needs to be addressed, or deliberations relating to development applications get used for political purposes rather than the purpose that the law intended.

I have offered Mr Moore and My Dyer any assistance they may require as they conduct their review.  This is an important issue and one that could have long and wide ranging impacts on local government and the people represented by local government.

Proper, effective and open planning assessments and deliberations are fundamental to proper, effective and open government.