Fine to get rid of Part 3A, but should councils get the power?

One of the first announcements by the new Premier of NSW was that the role of Part 3A of the planning legislation would be substantially reduced.

Why is it so unpopular and what will be the consequences of its abolition? Is it just as simple as 'giving power back to local councils and communities'?

What is Part 3A?

Part 3A, which has operated for around five years, had a couple of policy objectives.

The first objective was to have a more efficient way of 'approving' government public work projects. Just doing an Environmental Impact Statement under Part 5 of the Act gave insufficient certainty. Something needed to be done but it was never explained why, instead of fixing the fundamental faults in the original Act, a whole new Part and process was required.

The second objective was more sinister. The private development lobby wanted to piggyback on the new 3A process and have the Minister decide their developments, especially those where they wanted a 'spot rezone' – a change of use or a substantial increase in quantum.

The Minister as a decision-maker was popular because it was such a lottery when you went to a council meeting to support your application. The local community usually would often be up in arms and local politics would take over. And you couldn't apply to a council for a rezoning.

The developers therefore liked the idea of the Minister being able to ignore a raft of environmental controls in other legislation as well as planning controls that applied to the unwashed when they had their developments decided by councils. Under Part 3A the Minister had the sort of power that the Queensland Government had over developments in the days before the FitzGerald Commission into Corruption. Except that, in Queensland, unlike in NSW, the public could appeal against ministerial decisions they didn't like.

So is Returning Power to Councils the Answer?

Unfortunately, the right answer is no. That is, so long as the councils continue to 'hear' disputed applications for consent in council meetings.

When a council meets it does so as a parliament. Parliaments are not devised to conduct hearings. Councils therefore conduct bad hearings. It is not the fault of councillors. It is the fault of the legislation, requiring them to consider difficult matters in a forum unsuited for that consideration.

Why don't council meetings provide a proper forum?

In a Discussion Paper in 2005 the NSW Independent Commission Against Corruption (ICAC) summarised the problem as follows:

Decisions on developments have the potential to significantly impact on people's interests. People with a relevant interest in a development application should be entitled to procedural fairness from the decision maker. The rules of procedural fairness including the right to a proper consideration of a matter, the right of affected parties to be heard and the right to be provided with reasons for decisions.

The structure and nature of council meetings often prevent procedural fairness rules from being applied. The lobbying of councillors highlights these problems. Proponents often lobby councillors with an interest in a development decision before a matter has reached council. This is a legitimate practice under the current system. However, it does little to encourage transparency. Others with a relevant interest in a development matter may not even be aware of what was said to the councillor and consequently denied an opportunity to respond.

Some councils have attempted to adopt a more transparent mechanism for allowing objectors and applicants to be heard by allowing them to address a council meeting prior to the vote on a development matter. This practice can also be fraught with difficulty. Residents and objectors are usually given a very limited time in which to make their case regardless of the complexity of the matter. The practice of receiving submissions in this form also allows proponents to make inaccurate statements that are not subject to challenge by council staff.

Finally, when a council votes on a development, it is not obliged to give reasons for its decisions if it approves the application. Councillors are also not obliged to respond to the issues raised by objectors and applicants when they address council.