Deification of the NSW’s Planning Act inhibited reform

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