Into the swamps of the current system, or a clear view of where to go?

The NSW Minister for Planning has asked two lawyers and ex-State Government ministers - Tim Moore and Ron Dyer; one Liberal, the other Labor - to review the NSW Planning System.

Has this review of the planning system morphed into just another review of the detail of the planning legislation? There have been many reviews of the State's Environmental Planning & Assessment Act and each review has just ended up making the system worse. It cannot be fixed unless the fundamental flaws in the drafting of the Act are addressed.

What is needed from the current Review is a fundamental look into the way the State Government plans and the role of legislation in that process. And the Review should not just be about the planners' legislation but should consider the quite excessive number of other development control systems that operate in the State and contribute to making it the most complex and expensive place in Australia in which to do development.

Where The Review Is Up To

The adoption of what has become an increasingly popular way of doing policy reform has not assisted the Review to adopt a fundamentalist approach. Instead of putting forward some core principles and then encouraging debate on those principles, the process was started by asking the people what they think needs fixing.

While this may sound democratic it can lead to merely fiddling at the margin of change. Especially when dealing with the Heath Robinson machine, which is the NSW planning legislation - legislation many planners consider is the planning system.

The Reviewers have run an arduous round of consultations and received many written submissions. An issues paper has now been produced, an astonishing effort given the time available. The paper summarizes the issues raised by the consultations and invites responses to an equally astonishing list of 238 questions.

Trouble is, the issues raised and questions asked are deeply imbedded in the intricacies of the current legislation. By directing us in such detail to its current intricacies, the reviewers have missed the opportunity to focus our attention on what is really going on here and direct the debate onto core principles. Such a process would have a greater chance of achieving some real reform in both the planning system and to any legislation that might be needed to support such a system.

The Minister's Performance Measure

There are probably about a dozen key issues that need to be addressed in designing legislation to support a planning system by imposing a development control system, which is what the planning legislation essentially does.

An example of one of those key issues was contained in the clear lead provided by the Minister, Brad Hazzard, when announcing the Review. His sole performance measure clearly invited a fundamental rethink of the nature and operation of the planning system of NSW.

The Minister said:

"Wherever you are in the State, someone who wants to provide housing or someone who wants to protect their environment, should be able to press a few buttons and know exactly what was intended for that particular parcel of land and what can or cannot be done with it. An IT friendly system. A user friendly system."

It is concerning that the Issues Paper describes the Minister's performance measure in terms that are considerably less fundamental:

5 Information Technologies and A New Planning System

"The only specific outcome required by the Minister for Planning was that the NSW Planning Systems Review consider and make recommendations relating to the integration of information technology and the planning system.

Two objectives have been identified:

1. Increasing accessibility to data about land (including zoning and flood related development controls) in NSW. This is to be facilitated by a user friendly, single access portal that will collate data currently held by a variety of State agencies.

2. Increasing the use of electronic lodgement and publication of documents in planning processes such as development assessment.

The Issues paper talks of data collection."

The Minister however wants a digital set of certified correct set of controls applying to each block of land and accessible on line - a much more basic reform.

The efficiency, effectiveness and certainty of the current system suffers because of a proliferation of development control documents. No other State has such a system. The Minister is asking for a single, certified, digital document of controls applying to each parcel of land. He was not asking for a data collection of documents that may be relevant.

Meeting the Minister's demand must mean significant change to the current system and its legislation and one would have thought the Reviewers would have embraced his demand, set out the nature of the changes needed and asked us to respond to them.

If there were a certified list of parcel, formatted controls it would be possible to achieve significant increases in efficiency, effectiveness and transparency:

• Legislation to achieve a single set of controls would require the 'single document' of controls able to be amended by either level of government. Effectively it would see the abolition of separate SEPPs, LEPs and DCPs. So far as the users were concerned, the development controls would be the controls, regardless of which level of government proposed or approved them. Instead of the 'weight' of a control depending on which level of document it was in, the actual wording of it would demonstrate its strength.

• Any amendment to the controls would have to 'specifically amend' the controls applicable to each parcel affected by the amendment, rather than the current system where government just brings in a new control document leaving it to the users to work out what alters what.

• Instead of trying to achieve simplification by imposing standard zones and controls everywhere, a parcel based format for a single set of controls could provide greater efficiency and certainty, while providing more opportunity for controls that respond to the many different environments that make up NSW. (This was an often-expressed demand at the consultations and in the written submissions).

• A single digital record of controls applying to each parcel allows the public to monitor the conditions on which development is permitted. Controls can move away from blanket prohibitions and towards more performance based solutions.

• A parcel based certified record could facilitate the transfer of development rights, deal with matters of concern such as the location and design of buildings by direct controls rather than ineffective and distorting controls, such as those over subdivision. The consequences of reliance on subdivision controls, was also raised in the consultations.

• A single certified record of controls would greatly increase the transparency of the system and reduce the excessive time taken to detail all the many separate documents that currently apply and argue about their legal effect, or 'weight.' There would be greater community trust in the system because there would be more understanding, more locally relevant controls and less opportunity to game the system.

Other Key Issues

Several other key issues also should have been isolated at this stage in the process, rather than let the debate on key principles be lost in the mind numbing detail of the current shambles. These include:

• Some first principles on the nature of development control decisions and the appropriate processes for making them, rather than detailed questions about the roles of the existing panels, councils and ministers.

• More about the nature of planning processes as against development control decisions might reduce the semantic confusions in the list of questions.

• More theory with respect to the role of legislation, especially in relation to 'strategic' plans could have avoided 'would you like more' questions about strategic planning. Are we talking about another control document, or do we want planners' plans determining State Budgets?

Demonstrating how limited the Review appears to have become is its decision not to deal with the fundamental issue of the nature and content of the standard planning controls, now being imposed by the legislation on communities across State. The Review has decided to leave this issue to a departmental committee consisting of an in-group of local government planners and senior department bureaucrats.

The minutes of this committee do not demonstrate an intention to fundamentally review the 'everywhere-will-look-the-same' system, which was devised by the previously captured government to make it difficult to plan for places, instead restoring standard land use zoning and facilitating development by producers of project homes, fast food outlets and other standard can-fit-anywhere urban products.

The Standard LEP, against which there is such community reaction, is the end product of a bad planning system and dysfunctional legislation. A proper review of the Planning system cannot just pass it off to an in-house committee.

Departmental Capture?

Unfortunately, thus far it appears the location in and staffing by the planning department, have unduly influenced the Review.

In fairness to the Reviewers, in their covering letter to the Minister they state that the Issues paper:

"Merely reflects the issues raised during the consultations - it does not seek to set the vision or details of the new simplified planning system you (theMinister) have asked us to produce."

However, the responses to the questions posed will be considered in drafting a Green Paper, to be provided by April, with a view to legislation in the Spring Session. Much effort will be put into responding to the 238 questions when there could have been a much shorter list directed at the key underlying policy issues.

With a bill expected in nine months there is very little time to drag oneself out of the swamps of complexities presented by the current Issues paper with its 238 questions and get oneself in a position to put forward fundamental arguments for change.

Sounds like fiddling at the margin is the more likely outcome from this Review.