The failed NSW planning reform

Benefits of parcel formatted controls

As well as improving the certainty and authority of information available, a single digital document of an integrated set of rights and obligations applying to each land parcel has other potential advantages for the nature and quality of development, for example:

• It will be easier to trade in development rights. At present heritage floor space can be traded with covenants being placed on titles. With the new development control data base being 'evidence to the world', it, rather than the title system, can be used. Simpler recording would facilitate greater use of trading in development rights as a means of achieving environmental design outcomes.
• By using a parcel format rather than coloured land use zoning maps and the regulations relating to those zones, there can be more locality explicit controls. Rather than the vague objectives of some standard land use zone, objectives for each locality can be the primary control.
• For example, in new development areas, well-worded design outcomes expressed and limits on the quantum of development together with control over all design and works, but not subdivision could greatly improve contextual design. The absence of standard land use zoning maps could allow a mix of land uses and dwelling types appropriate to the nature of the development and the market.
• In selected areas, and especially in redevelopment areas, density controls, rather than minimum lots sizes, could be used. Design options are expanded with the inclusion of the details of approvals on the 'notice to the world' digital register ensuring that density entitlements are not misused. Using subdivision control as a density control (x parcels per hectare) ensures the whole area is carved up, reshaped to receive the standard project houses located by standard set backs on standard sized lots. By contrast,with a density control (x houses per hectare) and no control over subdivision, designers can locate housing and services wherever they best fit on the site. That density entitlements had been used would be apparent to any purchaser thereby defeating any attempt to double-dip.
• By doing away with the need for land use zoning maps and standard State-wide regulations and moving to parcel formatted controls, the planning profession can dispose of the current impression that the objectives of planning are to separate land uses and ensure everywhere looks the same as everywhere else. Instead the profession could regain its reputation as encouraging the making of excellent places.

How Well Has the Government Done in Implementing the Minister's Objective?

The old system rebadged

The exhibited White Paper and the draft Planning Bills are an incompetent mishmash of the past complexities and free market ideology. Excessive opportunities for the use of Ministerial discretion will expand opportunities for corruption. The Minister's objective for a parcel formatted digital cadastral database has been thrown into the muddled mix but only at the last minute. It is an add-on, not the driving force for a reformed system.

The core of the proposed new planning system is essentially a 'rebadge' of the current complex system:

• The multiple ways of applying for development consent are retained.
• Control continues to be imposed by separate 'regulatory' instruments as it was in the original planning legislation in the 1940s.
• No consideration has been given to imposing control by the Act itself, thereby allowing the 'controls' to be policies affecting the discretion to grant consent rather than imposing control in the first place.
• The three layers of control documents are retained, each with different 'weight', regardless of wording. The welcome proposal for the misleadingly called 'local plan', which is to contain all the development controls, is undermined by retaining within it the existing three levels of documents.
  The 'local plan document' will have a parcel-based digital base but will contain, not only the three categories of controls, but also a local strategic plan that is to be taken into account in assessing planning applications.

A hopeless muddle!

Strategic planning

The planners' fantasies can be seen in the three levels of strategic planning that the legislation will require. This is a repeat of the fantasies in the 1979 Act. Those plans never appeared. Instead we got the proliferation of levels of differently weighted development control documents that, in essence, are now to be retained in the 'Local Plan'.

The strategic plans legislated for in 1979 did not appear for a good reason. What does it mean to legislate a strategic plan? Rightly it makes governments nervous to say anything meaningful. Given the time taken to prepare it, such a plan will be out of date by the time it is finalised. It’s not surprising that hidden in the current Bill are provisions making the process for consulting on the strategies and the outcomes not enforceable in Court: PR pretending to be legislation, in other words.

When it comes to planning legislation, legal certainty is required for the property rights of landowners and the expectations of investors and of communities. However, governments do not need legislation to plan. Regulation of development rights is not strategic planning: it is one of the tools to achieve strategically planned outcomes.

The operation of development rights legislation needs to provide certainty, transparency and efficient administration. The White Paper proposals do not provide them. The muddling of the planning process with the development rights process ensures confusion and inefficiency. The incompetent grafting of an economic rationalist ideology, along with a desire to pander to the demands of the development industry for unfettered Ministerial discretion, ensures that the proposals seriously lack transparency and, if enacted, will greatly expand the opportunities for exercising undue influences. A dangerous hopeless muddle!

What Must Be Done

The whole package must be withdrawn and redone from first principles. The constant tinkering with the fundamentally flawed 1979 system, of which the current proposals are just a further example, must come to an end.

Two fundamental changes must be made: