Time to rewrite the NSW Planning Legislation

The incoming government of NSW has promised to review the State's planning legislation, the Environmental Planning and Assessment Act 1979.

This proposed review will bring out the usual fantasies about what planning legislation can achieve. No doubt these will include, health, sustainability and beauty, together with easier development supported by happy communities. And affordable housing, of course.

What is actually possible?

Planning legislation imposes controls over development

We often hear of 'positive' planning legislation that is more than just 'control over development'.

Fact is, the central thing planning legislation does is to impose restrictions on what you can do and build on your land. 'Positive planning' is nothing more than lifting some of the controls that used to apply to your land, thereby allowing you to do more 'positive' things with it. The legislation is still about imposing controls; it is still essentially 'negative'.

Many decisions by governments apart from the controls that apply to your or your neighbours' lots affect the value of your land. If a government's budget expenditure provides a railway station and new line nearby, the value of your land will probably go up. The same will happen if government improves the quality of the local school, or if the local crime rate goes down.

While many things that government does affect the place where you live, the legislation imposing a development control system is not a good instrument for controlling how and when governments make all those other important decisions.

Controlling development is just one of the means of trying to make sustainable cities and towns, and legislation for this purpose should not try to do more than set up an efficient, effective and transparent development control system.

Planning Legislation Will Not Control Budgets

As an example of the fantasies about planning legislation, ever-hopeful planners like to think their plans could control the budgets of governments. The argument goes, if the controls are altered to allow development where previously it was prohibited, then those plans also should make it illegal for governments not to spend money on the infrastructure necessary to support the new developments.

It won't happen.

Firstly, the budgets of governments need to be prepared with the best available information at the time. The planners' plans that justify changes to statutory land controls will be out of date by the time the Budget is prepared. No court is going to declare that the Budget is illegal because it does not comply with some planners land use plan prepared two or three years earlier. Indeed, no court is going to give itself power to determine the Budget of the executive and parliament.

And if planners' plans were ever going to be enforced in this way you can be sure that those plans will be worded so as to say even less than they do now. Every other department, and especially Treasury, would edit the last remaining meaning out of them.

The most that can happen, and it has happened increasingly over the years, is that the planning legislation can say that a prohibition on development will not be lifted until particular public services are provided. So we have gone from new subdivisions with unmade roads, no sewerage, parks or community facilities to subdivisions where these have to be provided. This stops development but does so in a way that does not involve the Courts in enforcing expenditures by government. It reflects the 'negative' nature of planning legislation.

What About Strategic Plans and Planning Legislation?

So what about the role of strategic planning and should the planning legislation require governments to do it?

Traditional planning fantasies envisage a neat hierarchy of plans – in increasing levels of detail, first the State plan, then the regional plan and then the local detailed plan.

Enthused by this vision, in 1979 the NSW planning legislation had these three levels of plans (four actually because the local controls were split into two documents for no good reason). The State Cabinet was responsible for making the Statewide vision, some regional organization was to make the regional level plans, with councils being responsible for the local plans.

When the legislation was being prepared, like now, there was a reaction against the State Minister doing spot rezones for mates. In a burst of idealism, the legislation provided that only councils could initiate changes to the detailed controls. As a consequence, almost immediately, the State planning power was traduced by being used to amend the detail of the local plans, not by specifically amending them but by overlaying them with detailed amendments.

Today there is an appalling mess of documents – all are detailed but they overlap and are complex. Unlike in some other States you cannot get an authorized print out of the reconciled controls that apply to your, or your neighbour's parcel. You, (or, all too often, the Court) have to wade through hundreds of pages and try to work it out. The government's answer to this problem is not to fix it but to dumb down the local controls to a one size fits all model.

And the proper roles of the executive and legislature also have been traduced. Because the State plan was idealised as a broad ranging statement of government policy, State Cabinet got to make it. Not used for this purpose, the power instead has been used to make overnight changes in planning regulations without any requirements for consultation or tabling for potential disallowance by parliament.

This is how the Minister of Planning was able overnight exclude Barangaroo from the need to comply with the State government imposed detailed controls for cleaning up contaminated sites.

Strategic Planning is Not Land Use Planning

Governments should do more real strategic planning. They seldom do, despite various token efforts in recent years.

Planners' plans were never strategic. As they were intended to be, the legislated plans are a series of detailed maps showing the boundaries of parcels in different colours to denote the permitted land uses, heights and floor space ratios. They are 'cadastral' control documents, appropriate for a legislative control document.

Even when planners try to write documents supporting their controls, those documents are seldom strategic. They do not clearly identify the strengths and weaknesses and then identify measurable outcomes, strategies and actions that are needed. Usually they are expressed in generalities – feel-good hopes rather then clear analysis and instructions. Little chance of failure being sheeted home to the authors.

So What Planning Should Do Before Changing Controls?

Transparency and effectiveness require governments to justify changes to development controls by publication of wide ranging and comprehensive studies assessing the likely positive and negative impacts of proposed changes to the controls.

The original 1979 planning legislation required this, but it has been watered down over the years. For example, assessments of the massive urban rezonings of the Northwest and South West Corridors in Sydney were only superficial, especially those on the deals done by the Minister after the publication of the draft controls.

This is the most important role for environmental impact assessment. This is where governments should be required to justify the changes, where members of the public should have the right to be heard and to receive honest responses to their concerns.

Of course it would be best if communities were made part of the process of working out new controls, especially if they are for redevelopment. Properly involved from the outset, locals can be very productive in planning the desired future character of their areas, even when governments are seeking significant change.

Trouble is that governments don't trust communities so they try to railroad them. Witness the State government's performance over the Ku-ring-gai rezonings, or the recent regional centre controls.

The consultation process in the legislative process assumes governments prepare detailed changes, put them out for criticism for a couple of months, adjust the plans at the margin and then make them into law.

And then developers feel disappointed when their almost complying developments provoke a storm of reaction from the community.

One of the recurring fantasies of the development industry is the expectation that if the public and the local councilors are involved in the policy making, then they should not be involved in judging the detailed developments.

Doesn't work. Firstly, because of the untransparent way the public are involved. Secondly, because the controls are complex and it is difficult to understand what is actually going to happen next door. Thirdly, because NSW developers, almost without exception, try to get more development than the controls intend.

Instead of trying to cut the public out of the assessment of developments, what is needed are hearing processes better than those that occur before the parliamentary style meetings of councils late on a Monday or Tuesday night. Everyone leaves these meetings angry. Recognising this some councils have independent hearing processes and they are working well. All councils should set up processes that comply with the principles of 'fairness and due process', something that cannot be provided under the rules governing council meetings.

What about achieving sustainability, affordable housing, equity and so on?

A key issue is whether the planning development control legislation can require governments to achieve certain objectives, such as sustainability or affordable housing?

This is a complex issue that needs to be dissected.

What is the scope of the legislation and what can be taken into account in making decisions to impose controls or assess individual developments in accordance with those controls? And what actions can members of the public take if governments are not achieving these objectives.

The current legislation has a detailed set of objects that include encouraging 'the social and economic welfare of the community and a better environment'. More particular objects are encouraging ecological sustainable development and affordable housing.

Objects and Making New Controls

These statutory objects are needed to identify objectives that can be pursued by the imposition of development controls. For example, affordable housing was included when a developer objected to having to provide units at less than market prices. There is a dispute at the moment about extent to which development controls can be used to protect retailers from competition.

A key issue for the design of planning legislation is if and how the community can challenge whether the government's changes to controls do affect a fair balance between the competing objects of the legislation. Should the right be for an inquiry, as in Victoria, should it be the planning Court, or should the executive, or the parliament, or a statutory body of 'philosopher kings and queens' have the final say? How is democracy best served?

Objects and Individual Applications

Certainly the objects should inform the exercise of discretions when making the controls, but once they are made, should the generalized objects, or some of them, be used to modify the application of those controls to particular proposed developments?

So even if the controls applying to my land allow a four storied building, could an ecological sustainability argument be mounted that resulted in my only getting permission for two stories?

Different States have approached this differently. South Australia, which has a parcel formatted system with desired locality statements, limits the exercise of discretion to those provided in the controls applying to the parcel in question. Depending on the amount of planning analysis of the locality, those controls may be very specific or quite general.

NSW, by contrast, encourages using the relevant controls (which usually are not place specific) and such issues as the public interest and the objects of the legislation. No wonder there is so much disputation and so many lawyers involved in the NSW system.

Some hard thinking about the nature and application of generalised statutory outcomes will be needed when it comes to designing a new planning system for NSW.

Reducing Corruption

Transparency is assisted by clarity of process, single parcel formatted controls, clear provisions about the exercise of discretions, due process hearings on disputed control setting or assessment of individual developments.

There are too few of these in the NSW system.

Taking action against political donations and lobbying and raising penalties for corruption treat symptoms but do not necessarily improve processes.

Giving the community to right to have discretionary decisions taken again by the Court (third party merit appeals) is an excellent way of reducing the potential returns from applying undue influences over decisions. There are few TP appeals in NSW. Once the decision is taken by council or the Minister, that is the end of it. It is worth an effort to influence the result.

Of course, TP appeal rights have their problems and the Court should have effective powers, and the will, to punish those who resort to appeals merely to delay. But, properly managed, TP rights would provide the most effective weapon against corrupt practices.

How to Write New Legislation

The present Opposition has talked about a longish process of review with a committee of representative interests.

This may produce the kind of camel we got with the 1979 legislation. It had some excellent features but at least five disastrous flaws, which remain despite hundreds of amendments. Problem has been that the long lasting administrators of the legislation so oversold its virtues that they have not been able to face up to fixing the flaws. Instead, they have devised convoluted ways to overcome them. The over one hundred State planning documents over time and introduction of Part 3A are examples.

A small team should do the review work but it should be required to workshop all the detail with the pressure groups and the community. Not 'what do you think of this' type of public meetings but one or, preferably, two day workshops where real work is done. It should not be possible just to stand up and have a shout or indulge in a fantasy.

So disciplined intellectual work at the centre and a maximum productive interaction between by all those with an interest are needed. These should be able to introduce a draft for discussion into Parliament within nine months.