Time to rewrite the NSW Planning Legislation

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 The planners' plans that justify changes to statutory land controls will be out of date by the time the Budget is prepared.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