By Kim Powell

For most of 2006, local governments in NSW have been at loggerheads with the Planning Minister, Frank Sartor, over changes to the state’s planning laws.

Last year, the Planning Minister gained the ability to declare a development as being ‘state significant’ and become the consent authority for the project. He says there are different reasons why a project may be declared state significant, “It may be due to a project’s economic importance to NSW, potential environmental impact, strategic location or because it will provide essential infrastructure.”

On February 20, Mr Sartor announced that councils will need to submit proposed local environmental plans (LEPs) to a panel of experts to determine whether they should be put on public exhibition, in order to speed up the process and stop resources being wasted on ‘dead-end’ LEPs.

He says the NSW Government’s Parliamentary Counsel prepared 5,500 pages of draft LEPs each year but because many of these drafts did not comply with state or regional planning objectives, only 20 per cent ever became law.

The Minister and the NSW Local Government and Shires Associations have argued over a survey of 1100 people by the Property Council of Australia that showed widespread support for reform of the local government planning system.

Mr Sartor said the research revealed “two-thirds of Australians support the creation of a new development assessment system to reduce the politicisation of council decisions” and that more than 55 per cent of Sydney respondents “don’t trust councillors to serve the community’s interest” when they assess development applications.

He said in light of these results, opposition from the two Associations to the bill to reform the Environmental Planning and Assessment Act 1979 would be self-serving.

The Local Government Association’s own independent polling revealed 72 per cent of respondents felt that councils were the most appropriate level of government to determine building and development applications.

From a sample of 640 households in rural, regional and metropolitan NSW, 92 per cent believed the community should be consulted before any attempt was made to transfer responsibility from councils to planning assessment panels appointed by the State Government and 60 per cent disagreed with shifting this responsibility altogether. Tellingly, 86 per cent felt people who directly or indirectly worked for developers should not be allowed to serve on the panels.

On March 28, NSW Parliament gave the Planning Minister controversial powers to seize control of the planning process from councils he declares to be under-performing in terms of time taken to reach critical decisions, with uncertainty about the definition of the criteria he would adopt.

It was a close vote. Mr Sartor says that despite the “hyperbole from local government”, the majority of the 125,000 development applications lodged each year were for home renovations and small business expansions, and that since delays can add unnecessary costs to this process, the changes will make councils more accountable for their performance.

President of the NSW LGA Genia McCaffery says similar changes in South Australia were debated over three years, not the matter of months given to it in NSW.

“The Minister already had power to intervene if he is concerned that a council is not fulfilling its obligation under the Act, but he had to jump through a whole lot of hoops to justify doing that,” Cr McCaffery says.

“The new amendment removes all those hoops and jumps and removes the accountability. I don’t think anyone objects if a council is failing to fulfil its obligations and the Minister can provide the proper documentation to show this.

“The problem with this new bill is there’s no requirement for the Minister to provide that proper justification. You should always draft laws and frame laws in a way that requires accountability, so it doesn’t depend on the personality [of the Minister] that they will be accountable. The law should protect the community. And that’s why I continue to say it’s a bad law and it should be repealed because the law doesn’t protect the community, it encourages abuse.”

NSW Shires Association president Col Sullivan was blunt, releasing a statement saying, “What is to say what a rogue minister can do with this legislation in future years? It is a dangerous precedent in this climate to give any minister of the Crown unfettered right to take over council powers, with no appeal rights, no transparency, and no requirement for him to give public reasons for his actions. For any government to attempt such reform without consultation makes one suspicious of their true motives.”

Mr Sartor told Government News that the criticism from the two associations that they weren’t consulted before the amendments were put to Parliament was unjustified.

“The Government has made no secret of its program of planning reforms, which we first announced in September 2004,” he says.
“We made it clear that we were embarking on a major overhaul of the NSW planning system.”

He also says he has “repeatedly made it clear” that he wants councils to continue to oversee the majority of development applications.

“It is also important to remember that the NSW Government and its ministers are accountable to the general public through the media, through Parliament, including Question Time, and in state elections,” Mr Sartor says.

Despite this controversy, not all of the amendments have been divisive. Other changes this year include the creation of a template that will slash the number of LEPs from 5,500 to 200, cut the number of zones from 3100 to less than 50, and reduce the number of definitions from 1700 to about 300 so that medical centres, hospitals, restaurants and car parks are defined in the same away across the state. Mr Sartor says the “majority of councils supported the general concept” of standardising the State’s planning language.

“We will continue to work with councils as the new template is put into use across the state, to see if any further improvements need to be made,” he says.

Developments of significance
Sue Robinson is the executive general manager of the NSW Urban Taskforce, a property and construction industry group established in 1999. Her background is in urban planning in local government in NSW and Victoria.

“The planning reforms which have occurred in the last twelve months are probably the biggest reforms that have occurred in the last 25 years,” she says.

“The NSW Urban Taskforce was a strong advocate in support of the major planning reforms to state significant projects which were introduced by the state government last year.”

Ms Robinson says the decision-making process on major projects and matters of critical infrastructure has now become “quite clear and transparent”.

During the planning process, the Department of Planning is required to get input from other agencies, such as the NSW Rural Fire Service, the Department of Environment and Conservation and the Roads and Traffic Authority, to check that there are no conflicts between the requirements of different government bodies. There has been change to streamline the process of seeking concurrences between government agencies.

“Before the changes came through it was fairly uncoordinated and waiting for government agencies to respond caused major delays in the assessment of major projects, and often their comments were uncoordinated so the feedback from one agency conflicted with the requirements of another and there was no facilitation of a common position across government,” Ms Robinson says.

“Now the Director-General of Planning convenes a group which comprises all of those agencies in reviewing a major planning project, to form a common position. It’s dramatically decreased the time it takes for those projects to progress through the State Government assessment and approval process, and that has huge benefits for our economy because of the reduction in uncertainty and risk for businesses and the development sector.”

Dr Glen Searle, a senior lecturer in urban planning and the head of planning in the Design, Architecture and Building faculty at the University of Technology, Sydney, some of the changes to planning legislation, such as the expert panel, are good and some, like the move to standardise LEPs across the state “are not too good”.

“The standard LEPs I don’t think are very good, they haven’t worked very well in Melbourne,” he says.

“With the state significant changes it’s difficult to say until they’re actually applied, so the proof of the pudding will be whether they are applied in a way that is purely political or whether they’re applied in a way that does enable genuinely state significant projects to proceed in a way that is not going to be threatening to the environment.”

Dr Searle says forcing a standard set of controls for land use on communities is going to cause problems, and while these communities can add their own controls in addition to the standard ones, there will be a temptation to just go along with what is there in order to save time and money.

“Standardisation doesn’t really allow the potential for local communities to construct local responses to genuinely local development issues,” he says.

“Potentially it does save resources at a local level, but I just see it as a threat to the degree of independence of local communities in the planning process.”

Expert panels
There is one amendment that all parties seem to agree on: the use of expert panels to assess LEPs.

“I think that’s good reform,” Cr McCaffery says.

“We’ve been constantly complaining about how long LEPs sit in the department with no action, and this process means that the department is telling councils right upfront if there’s a problem with the LEPs rather than them sitting in the department for years, causing frustration in the community and frustration in the councils. This is a really good reform and the Minister should be applauded for it.”

Ms Robinson also commends this change for its ability to speed up the planning process.

“The LEP review panel is an absolute innovation which was long overdue and it now enables rezoning proposals – which have been endorsed by local councils – to get a quick response from the Department of Planning. And that’s very valuable because it means that both local councils and proponents of rezoning are not spending an enormous amount of time and resources trying to go through the rezoning process, which can sometimes take 18 months to two years.

“The problem was previously you’d go right through a rezoning process, then an extensive public consultation process and so on, and you’d finally have something to take to the State Government after 18 months and you may get it rejected. Now you can actually get the Government’s view at the outset before you go through that long process.”

However, Cr McCaffery says, the development industry has also been pushing for panels of a different kind, called Independent Hearing Assessment Panels, or IHAPs.

“IHAPs are what the development industry has been promoting for years throughout Australia, not just in NSW, and local government is vehemently opposed to them,” she says.

Cr McCaffery says the main reason communities elect councillors is to consider development applications and the only way to ensure the people making development decisions are held accountable to the community is through the democratic process.

A local plan
Dr Searle believes that on local matters where the proposed development is of local significance, the community should decide whether or not it goes ahead; whereas on state matters the State Government should assess the application.

“The problem is where you draw the boundary, that’s the real issue,” he says.

“There’s a lot of room for debate over what is going to be included in state significance and what’s not, the devil will be in the detail on that one. Even if they represent bad planning, local communities have got to be given the right to do that and if the Government gets concerned about bad planning at the local level they should be putting more resources into it, allowing councils to raise rates or giving them special injections of funding. The State Government should allow local communities to govern themselves in an efficient matter.”

Instead of taking control away from councils who may be taking too long to assess development applications, Dr Searle suggests the NSW Government looks at what is causing the problem: it might be because the council simply doesn’t have enough resources.

He says the State Government should provide more assistance to these councils, and that development assessment training should be compulsory for all councillors.

“Let’s try and fix it up at the local level first rather than giving it back to the state,” he says.

South of the border, the Victorian Local Governance Association (VLGA) has also called for less intervention and more support in the planning process, after the State Government intervened in a $450 million housing and retail project at Tooronga.

Victorian Planning Minister Rob Hulls took control from Boroondara Council because it refused to publicly exhibit a scheme for 600 apartments and a revamp of the shopping centre. The council says it wanted changes to the plan, including reduced height and increased distance from Gardiners Creek, but site owner Coles Myer and developer Stockland opposed these changes because it would mean eliminating about 40 apartments.

VLGA chief executive Andrew Rowe said the intervention highlighted the difficult position local governments get placed in because they must represent the local community. He said that “simply ripping the dispute from the hands of the local community is going to cause long-term damage and resentment” and the State Government should provide more support for councils so this doesn’t happen.

Sue Robinson says it’s not a matter of who’s got control of the planning process because both levels of government have a role to play in different developments.

“State significant development, being major projects, should sit with the State Government [because] they’re matters of state economic priority and local governments can sometimes frustrate matters of a much bigger regional and state priority through local objections and interests,” she says.

“There are local planning matters which best sit at a local level and I think the current legislation is quite clear in allocating the different responsibilities. It’s a system that must work in a complementary way and in cooperation.”

In the lead-up to the state election,  the NSW LGA and Shires Associations will be campaigning very strongly to revoke the amendment that gave the Minister the ability to strip powers from councils, and for all planning strategies and regional strategies to be supported by infrastructure investment.