Deification of the NSW’s Planning Act inhibited reform

Failure to provide statutory protection to the person responsible for administrating the development assessment process (at present the Director General of the Department of Planning).

Consequences of Fault Six

• Conflict of roles between the active tasks of managing cities and towns and operating an efficient, fair and transparent development assessment system.

• Potential for suspicion that processes and assessments are not transparent and that undue influences may be at work.

What to Do?

Write new legislation clearly for development assessment only and ensure that there is a substantial degree of regulation simplification in the process (as there was with the NSW Local Government Act 1993). Also increase the range of skills of the Department with staff that have a much wider set of qualifications than statutory planning.

Set out below is the core elements of proposed new legislation. (As noted in italics, most of these elements can be found in development assessment legislation in other States.)

The legislation should:

• Only deal with the provision of an effective, efficient and transparent system for allocating development rights and imposing development obligations. (SA)

• Require a single document recorded in digital form on a cadastral base setting out, in an integrated form and in plain English, the development rights and obligations applying to each parcel of land and provide that only that document and any other documents specifically 'called up' by the document can be used in any development assessment. (i.e., no generalised assessment criteria set out in the legislation) (SA, Vic to an extent)

• In the further interests of regulation reform, ensure that this cadastral record has the potential for integrating rights and obligations granted or imposed by other development control legislation together with the details of any consents or orders issued in relation to each parcel. (potentially SA, Qld, ACT))

• Define the circumstances by which either level of government may initiate processes to 'specifically amend' the digital cadastral record of development controls. (SA, Vic)

• Set out the processes to be followed to ensure that local communities, within the parameters set out by government, have a role in drafting and helping to settle the cadastral record of the development rights and obligations applying to their places. (None really as all merely rely on publication of detailed draft controls and receipt of submissions).

• Require the allocations of the rights and obligations to be justified (in a public hearing if necessary) by demonstrating that they will assist in the achievement of certain qualitative objectives – such as ESD, strategic/structure planning appropriate to the nature of the decision and the detailed descriptions of the desired physical and other outcomes sought for each parcel or collection of parcels. (SA to an extent)

• Provide a single process for applying for the exercise of administrative discretion, even if the extent of the assessment and the decision paths may vary depending on the nature of what is being proposed. (The single process also should have the potential to integrate a range of similar application processes in other legislation in a manner that does not lead to the expensive processes the failed attempts in NSW have produced.) (Qld, ACT, SA, NSW Local Govt. Act)

• Provide the potential for a fair hearing process prior to the exercise of any discretionary decision, i.e., those decisions amending the controls, or exercising discretions identified in the controls, or making exceptions to the controls. (State level decisions, Vic, SA, although recent amendments have reduced transparency somewhat.)

• Provide statutory protection for the officer administering the development assessment system and clearly separate that role from any role of helping to manage the State (SA, WA to an extent).

This legislation can be relatively short and simple.

The legislation should be entitled 'The Development Assessment Act' and should not be accompanied by spin suggesting that, by itself, the Act will somehow save the world.