Planning Bill 2013 Planning Administration Bill 2013
(6.07pm 29 October 2013, Debate, Legislative Assembly, NSW Parliament)
The fundamental goal of a new planning system should be to achieve sustainability, including design excellence, and to ensure that local communities can have a say in the future of their neighbourhood in an environment where housing supply must increase in the face of population growth. When the Environmental Planning and Assessment Act 1979 was introduced it was heralded as landmark legislation. It established strong controls to protect the natural and built environment and enshrined community rights to be involved in planning processes in response to uproar against the proliferation of development that destroyed the character and heritage of neighbourhoods and provided incentives for corrupt behaviour. Since then, particularly over the past 15 years, ad hoc changes have weakened the Act and community uproar has returned. In particular, the now removed part 3A was widely condemned.
A wholesale rewrite to modernise existing laws and restore environment, heritage and amenity protections is needed. I welcome the Government's decision to take on this challenge. The new planning reforms proposed under the Planning Bill 2013 and Planning Administration Bill 2013 increase the focus on strategic planning, with areas of housing and job growth identified early on in collaboration with the community, stakeholders and government. Planning will be coordinated with timely infrastructure delivery. This is a welcome change to the ad hoc planning of the past and is a vital strength of the proposed system.
The consultation stage, however, identified a number of key concerns. I welcome the significant changes to improve earlier drafts. Vital changes include: retention of existing land zones; removal of targets for code-assessed development; full merit assessment of development proposals that comply only partly with code assessment criteria; an increase in local government's role in subregional plans; allowing for voluntary planning agreements; mandatory community participation through a community participation charter; establishment of a community participation advisory panel; and decision-makers must give reasons and respond to community comments in more situations.
Objectors will have appeal rights against development that has been subjected to assessment under an environmental impact statement, including State significant development. The Minister's ability to take plan-making powers from a local government authority for unsatisfactory performance will be removed. Many of the requested changes will appear in the yet-to-be-released regulations or in various guidelines, circulars, or other administrative documents. I acknowledge the hard work of the Minister for Planning and Infrastructure and departmental staff in engaging with thousands of people, responding to submissions and making changes. I particularly thank the Minister for speaking at my forum in Paddington and hearing my community's concerns.
Brad Hazzard: Delighted to be there, Alex.
Alex Greenwich: Thank you. But I have to ask: Are we getting the planning system we need—one that is not only better than what we have but will protect environment, heritage and neighbourhoods, ensure that new homes are sustainable and without defects, and limit impacts? Are we getting a planning system that will reduce our contribution to the biggest challenge of our time—climate change? Despite significant and welcome improvements to the drafts, I believe the planning bills fail to seize the opportunity to create a first-class planning system and could result in poor development and loss of environmental outcomes. I will highlight my chief concerns. Strategic compatibility certificates would allow a developer to apply to have the director general approve development that is prohibited by a local plan, such as floor space ratio or height, if the development is consistent with a regional growth plan. This has serious implications, as raised by a number of submissions. While mooted as an interim measure, as local plans catch up to regional growth plans the legislation does not limit their use.
Local plans are developed with community and stakeholder consultation and provide the necessary controls to deliver the strategic vision for a local government area whereas regional growth plans are broad strategic controls that do not include vital protections. New safeguards requiring 28-day exhibition of proposals, with a final decision by the independent regional planning panel if there are more than 25 objections or the council objects, are an improvement. But strategic compatibility certificates remain a way for developers to bypass democratically elected councils. They undermine the whole concept of up-front community participation in the strategic planning process and in all likelihood will lead to cynicism and community alienation. Developers can already apply to councils to spot-rezone land if their proposal is incompatible with a local plan. Providing another avenue for spot rezoning, with the decision-making transferred from local government in an environment in which rezoning can create significant profits for developers, creates a new corruption risk.
Where a local plan has not caught up with protections in a higher strategic plan, community members are not given the same opportunity to apply for a certificate and have land protected from development. I cannot support this change. The proposed planning framework would expand the use of code assessment to include two-storey rows of houses, multi-unit dwellings, and commercial and industrial development. I do not support bypassing proper assessment and community consultation for anything but basic works. Proper assessment improves design and sustainability outcomes, and can identify new heritage values.
John Williams: So you cannot even put up a shed.
Alex Greenwich: Is the member for Murray-Darling finished?
Brad Hazzard: I thought you were a nice guy and now you are letting me down.
Alex Greenwich: I am standing up for my community and their concerns about the bills. That is my job in this place. While the target of 80 per cent of developments to be code assessed has been withdrawn, uncertainty remains about how codes will be used. The legislation merely states that the when, if and how codes will apply will be set out in each local plan. The Minister stated that code-assessed development will be in growth areas, urban renewal areas and urban activation precincts that are serviced by infrastructure and transport, but these restrictions are not legislated. The bills exclude only land with State heritage, Aboriginal heritage or threatened species. The law should exclude code assessment in any area that supports native wildlife, regardless of whether they are threatened species. Destruction of any native habitat risks creating new threatened species. Furthermore, growth areas are not defined in the legislation. It is unclear how they will be identified, except that this will be done by subregional planning boards. This provides no certainty for existing communities.
It is a basic democratic right to be involved in changes to one's neighbourhood, to limit impacts and to ensure liveable and sustainable development outcomes, but residents in growth areas will be denied those rights. Moreover, the bills include a range of ways for the Minister, or the director general or the Planning Assessment Commission under the Minister's discretion to make provision in or to amend local plans without council agreement. What is to stop a future planning Minister from using powers to change a local plan to impose code assessments in a local government area? As the legislation is written, the expansion of code assessment creates risks, not guarantees, to communities and the natural environment. Under the bills, the Minister retains the right to call in development as State significant, thereby allowing it to bypass important environmental protections and approvals. With emphasis in the legislation on economic growth, those powers are akin to part 3A. If the Planning Assessment Commission determines an application after a public hearing, like the current planning system, third party appeals will not be permitted and that should be changed. The bills impose a time limit of five years for councils to spend infrastructure contributions, which prevents investment in long-term planning outcomes to manage impacts from development.
Brad Hazzard: Judicial appeals are allowed.
John Williams: Tell Clover that.
Alex Greenwich: I will mention that to Clover, who obviously shares my concerns about this legislation. Capital projects can take longer than five years to roll out. While an extension can be sought from the Minister, this will lead to continual representations for extensions, which will be inefficient and will lack certainty. Because there is no definition in the bill, there is uncertainty about the new contributions scheme and what will be included under the meaning of "community facilities". Concern has been raised that the existing section 94 provisions that allow a council to legally request an affordable housing levy under a voluntary planning agreement, as is the case with Green Square, will be removed and that councils will no longer be able to prepare new affordable housing contribution schemes. [Extension of time agreed to.]
Housing affordability mechanisms are needed urgently, particularly in the inner city, where increasing property values are threatening community diversity as well as social fabric and are excluding key workers, such as cleaners, teachers, nurses and police officers, from living in the area. The provision of new housing has negligible effects on reducing property prices in the inner city. Under the bills, the director general will coordinate approval, advice and recommendations from other agencies when a development triggers concurrence with other legislation, including environment legislation. An example would be where a development could impact on estuaries and a licence is needed under the Fisheries Management Act 1994. Except in the case of the Heritage Council or the Rural Fire Service, the director general would be able to direct an agency to provide approval for all developments, not just State significant development as is currently the case—even if the agency recommends refusal. That gives the director general unprecedented power to override expert opinions on vital issues that affect our future sustainability, including fish and water. This has no public benefit.
Ecological and sustainable development no longer will be included in the State's planning laws. While that was an objective of the Environmental Planning and Assessment Act 1979, the proposed planning bills introduce a watered-down version of sustainable development. Changes to wording since the draft bills were introduced have produced better wording but there is no guarantee that fundamental principles, such as the vital precautionary principle, which have been central with supporting case law to environmental protection for decades, will apply without distinct and clear reference to ecological and sustainable development. The policies and principles for strategic planning will be identified in the regulations. I request that the Government put strong environmental protections at the forefront of identifying where development should and should not occur as well as how it should occur to reduce climate change impacts. I acknowledge the extensive consultation process that occurred prior to the introduction of the bills. However, the bills are different from their drafts and are long, technical and complex.
Members should have been given at least 28 days to assess the legislation and consult communities, environment groups, councils and legal experts—all of whom say they need more time. I know that there will be a continuation of debate on these bills in the upper House. I pass on my thanks to those who assisted me and the community to understand the bills and their impacts, in particular the Better Planning Network, the Environmental Defenders Office, the Nature Conservation Council, the Total Environment Centre, the City of Sydney, the Woollahra Municipal Council, the Paddington Society, my many constituents who made submissions during this process, and indeed the Minister for his participation and for interacting with my community over their concerns. I am concerned that the bills tip the balance towards quick development approvals for economic growth that ultimately will lead to a downgrading of environment, amenity and social outcomes. I do not believe it will produce the planning system we need urgently. I cannot support the bills.