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Deification of the NSW’s Planning Act inhibited reform

By John Mant - posted Tuesday, 16 August 2011


When enacted the Environmental Planning & Assessment Act (EP&A Act) was flawed and pretentious and its instant deification has inhibited its reform.

Assisted by committees of usual suspects, the Department of Planning has regularly attempted to 'reform' the Act, proclaiming each time that the Act had 'no fundamental faults'. Not surprisingly the reforms have merely added complexities rather than fixing the problems.

The new Minister for Planning has just announced a further reform effort. At least this time the chair of the review is shared by a couple of respected ex-politicians, rather than being filled by a long serving planning bureaucrat.

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But, if the work on the reforms is to be done by the officers of present Planning Department with the same suspects setting the agenda, further fiddling, rather than a fundamental review, is the likely outcome.

Pretentions

The NSW Department of Planning.

Too many in the planning profession and even some of those who teach planning, seem to believe that administering legislation such as the EP& A Act is all you need to do to effectively plan and manage cities and towns.

Too many think the only fundamental improvement required is to amend the Act to legally bind all parts of government to the planners' long-term plans.

My experience with trying to fix planning legislation in four other States is that enthusiasts always start reviews of planning systems with the following false hopes:

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  • That the planning legislation should bind governments to long term planners' plans.

  • That these plans will somehow be able to achieve environmental protection, sustainable development, affordable housing, increased growth and full employment.

Much time and effort is wasted while these false beliefs are disposed of and we can arrive at the correct view, namely that no government is going to pass legislation to bind itself to long-term decisions about its future budgets. And no Court is going to order that a government's budget is illegal because it fails to give effect to some planner's strategic plan.

Planning legislation will always be limited essentially to a process for adjudicating between the competing interests concerned with the allocation of development rights and obligations.

In the end, 'Planning' legislation will be but one of a number of means by which cities and towns should be managed.

Managing the drivers of development

Urban management should be focused on the drivers of development, not merely on the consequences of those pressures, which is where development controls are directed.

Having an interest in the causes of demands for changes to environments, activities and structures, urban managers should be about more than the color consulting done by the average statutory planner.

The drivers of development include the form and content of the Budget, the prices set for urban goods and services as well as the level and incidences of taxes and rates.

Also important are the designs of public sector organizations; and the regulatory, administrative and legal systems they operate, as well as the industrial relation systems. So much of what happens in cities is the consequence of the design and operation of arcane administrations.

Urban management staff also should be able to understand capital markets and investment structures, population, social and housing policies. They should understand about environmental systems and be capable of negotiating with a wide range of parties in the pursuit of planning outcomes. And they will want, from time to time, to recommend changes to development rights and obligations.

Although controlling development requires legislation, urban managers do not need legislative permission to operate. This is especially so now the staff of the Department of Planning has become part of 'Infrastructure and Planning' located close to the Premier's Department, potentially as a key 'central agency'.

And an urban manager certainly should not be trying to administer a development assessment process that inevitably will suck up all of the staff available. For that reason alone, quite apart from any concerns about conflicts of roles, the development rights and assessment roles should be separated from the urban management tasks.

Deification of the Act

Despite its wide range of (often conflicting) high-level objectives and its apparent empowerment of the planners, in the end, the current EP&A Act, essentially is only about the allocation of development rights and obligations.

It would help to dispel the false belief that somehow administering the Act is all you have to do to manage cities and towns if any legislation replacing the Act was unpretentious and clearly only about development control.

Staff of the Department of Planning should not play a lead role in the current attempts to write new legislation. The Department has seen its core role as administering the Act and it has relied on the current Act in its attempts to exert power over other Departments and local government. Very considerable political investment was put into the Act from its first enactment, resulting in the Department preferring spin to analysis.

Spin has demanded compliance with the Departmental line. Decades of obedience to the departmental line, together with the narrow nature of planning education, have not prepared the staff for fundamental rethinking about the nature of planning and the role of legislation.

Of course, the Department's political investment in the Act has been misplaced.

The faults of today's development assessment system stem from fundamental faults with the legislation when it was passed in 1979 and, since then, the spin-induced inability of the Department to come to terms with those faults.

The Six Fundamental Faults in the Original EP&A Act

The first three fundamental flaws arose from the attempt to have legislatively binding strategic plans. Although the objective failed, it nonetheless infected how planning controls were written. This, in turn, infected both the nature of the urban outcomes and the efficiency of the development assessment system.

Fault One

Confusion between legislation for planning and legislation for development assessment. That is, confusion between outcomes and outputs, between a process for working out what outcomes you want to achieve ("planning") and operating an administrative process for allocating development rights and obligations, the latter being one mechanisms (outputs) by which government can seek to achieve strategic planning outcomes.

Fault Two

Failure to require a single document of controls for each parcel of land (because the Act established what looked like a hierarchical planning system for producing State, regional and local plans, presumably going from the general to the specific)

Fault Three

The fulfillment of a promise by the then State Government that, as the State apparently would be setting the broad planning frameworks with its State and regional plans, only Councils would have the power to initiate amendments to the local level of plans.

Consequences of these three faults

The first three fundamental faults have had the following consequences:

  • Because it could not initiate changes to the detailed controls, from the start the State has used its right to initiate State and regional level plans only for the purpose of making changes to the detailed controls in local plans. (The State wrongly has used 'State planning policies' to make administrative provisions about processes, which should have been in the form of regulations and subject to cost benefit analysis and Parliamentary scrutiny.)

  • Layers of confusing control documents stemming from the use of the State planning policy-making power to make detailed controls. (With each parcel of land now legally affected by over 40 un-integrated control and process documents, some might argue that at least the Department has been very successful at producing outputs, even if it has utterly failed to achieve the outcome of an efficient, effective and transparent development assessment system.)

  • Ultimately the imposition of the Part 3A process that provided the Minister with a more direct way than a 'State planning policy' to 'spot rezone' individual parcels. The recent "abolition of Part 3A' is a form change only. The spot rezoning power lives on, albeit it in a reduced and more transparent form. (There is nothing inherently wrong about spot rezoning, it is just that, as the rewards for applicants are usually great, an untransparent process, such as Part 3A, can be open to both the appearance and the fact of undue influence.)

  • Reforms' that belatedly have tried to simplify the documentation of controls. But, instead of taking advantage of digital cadastral databases and encouraging good urban design outcomes through a single document of locality based controls, these 'reforms' have dumbed down planning by demanding a return to the paper based standard zoning and design controls of the 1940s. The standard controls seem to have the objective that everywhere should become the same as everywhere else.

Fault Four

Two separate processes for assessing developments – Part 4 and Part 5 - and the failure of the Part 5 process to provide certainty in decisions on government and large impact developments.

Consequences of Fault Four

  • The failure of the Part 5 process and its substitution by the Part 3A process – a separate development assessment process to deal with government developments and 'big' developments. (The recent 'abolition' of Part 3A and its re-appearance in Part 4 does not overcome the basic design fault in the Act.)

Fault Five

Failure to provide transparent and fair processes for exercising development assessment discretions.

Consequences of Fault Five

  • The Part 3A process

  • Recently, the confused introduction of a range of panel decision processes, most of which have potential conflicts of interests and do not provide for fair hearings.

  • No general third party appeals to the Court. Third party appeals are the best weapon against undue influences.

Fault Six

Failure to provide statutory protection to the person responsible for administrating the development assessment process (at present the Director General of the Department of Planning).

Consequences of Fault Six

  • Conflict of roles between the active tasks of managing cities and towns and operating an efficient, fair and transparent development assessment system.

  • Potential for suspicion that processes and assessments are not transparent and that undue influences may be at work.

What to Do?

Write new legislation clearly for development assessment only and ensure that there is a substantial degree of regulation simplification in the process (as there was with the NSW Local Government Act 1993). Also increase the range of skills of the Department with staff that have a much wider set of qualifications than statutory planning.

Set out below is the core elements of proposed new legislation. (As noted in italics, most of these elements can be found in development assessment legislation in other States.)

The legislation should:

  • Only deal with the provision of an effective, efficient and transparent system for allocating development rights and imposing development obligations. (SA)

  • Require a single document recorded in digital form on a cadastral base setting out, in an integrated form and in plain English, the development rights and obligations applying to each parcel of land and provide that only that document and any other documents specifically 'called up' by the document can be used in any development assessment. (i.e., no generalised assessment criteria set out in the legislation) (SA, Vic to an extent)

  • In the further interests of regulation reform, ensure that this cadastral record has the potential for integrating rights and obligations granted or imposed by other development control legislation together with the details of any consents or orders issued in relation to each parcel. (potentially SA, Qld, ACT))

  • Define the circumstances by which either level of government may initiate processes to 'specifically amend' the digital cadastral record of development controls. (SA, Vic)

  • Set out the processes to be followed to ensure that local communities, within the parameters set out by government, have a role in drafting and helping to settle the cadastral record of the development rights and obligations applying to their places. (None really as all merely rely on publication of detailed draft controls and receipt of submissions).

  • Require the allocations of the rights and obligations to be justified (in a public hearing if necessary) by demonstrating that they will assist in the achievement of certain qualitative objectives – such as ESD, strategic/structure planning appropriate to the nature of the decision and the detailed descriptions of the desired physical and other outcomes sought for each parcel or collection of parcels. (SA to an extent)

  • Provide a single process for applying for the exercise of administrative discretion, even if the extent of the assessment and the decision paths may vary depending on the nature of what is being proposed. (The single process also should have the potential to integrate a range of similar application processes in other legislation in a manner that does not lead to the expensive processes the failed attempts in NSW have produced.) (Qld, ACT, SA, NSW Local Govt. Act)

  • Provide the potential for a fair hearing process prior to the exercise of any discretionary decision, i.e., those decisions amending the controls, or exercising discretions identified in the controls, or making exceptions to the controls. (State level decisions, Vic, SA, although recent amendments have reduced transparency somewhat.)

  • Provide statutory protection for the officer administering the development assessment system and clearly separate that role from any role of helping to manage the State (SA, WA to an extent).

This legislation can be relatively short and simple.

The legislation should be entitled 'The Development Assessment Act' and should not be accompanied by spin suggesting that, by itself, the Act will somehow save the world.

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About the Author

John Mant is a retired urban planner and lawyer from Sydney.

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