ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT BILL 2008
BUILDING PROFESSIONALS AMENDMENT BILL 2008
STRATA MANAGEMENT LEGISLATION AMENDMENT BILL 2008
Agreement in Principle
Debate resumed from an earlier hour.
Ms VIRGINIA JUDGE (Strathfield—Parliamentary Secretary) [9.52 p.m.]: I support the Environmental Planning and Assessment Amendment Bill 2008. I commend the Minister for Planning, his staff and those of the Department of Planning for their energy and the effort they have expended in bringing this important legislation to the Chamber. I know that many in our community, particularly musicians, are keenly interested in the bill. Indeed, people have spent hours preparing extremely thoughtful and thorough submissions on the legislation and their views have been canvassed widely in the community. I thank the Minister for taking the trouble to ensure that all members of the community were consulted, especially regarding the State's live music industry.
As some members may know, many years ago I was privileged to study music at the Canberra School of Music, and completed a double music major. I do not call myself a musician because I am not very talented in that area—I wish I were. But during my course I got to know a number of very fine musicians and others who worked in the industry in the Australian Capital Territory. When I moved to Sydney I continued my keen interest in, and support of, music. I have taught music at primary and high schools, produced musicals and established orchestras. However, I am a musical novice; I have never made a living from music—although I have often thought how wonderful it must be to do that. But in order to make music, one needs a venue. That is one of the reasons that I am so pleased to speak in support of the bill.
Through this bill, the Government is providing even greater support to the State's live music industry. The bill contains a proposal to simplify the planning process further for hosting live entertainment in pubs and bars. The proposal removes the definition of a "place of public entertainment", preventing a local council from potentially requiring an additional application for even minor forms of light entertainment. Under the current system, places of public entertainment licences are effectively a duplication of an existing process. Many in the industry claim that the current system is expensive, difficult and highly complex—not to mention highly anti-competitive.
Under the changes, owners will no longer have to go through the rigmarole of wading through enormous amounts of red tape to allow musicians to perform in their venues. I believe this will make an immense difference and greatly improve the live music industry. The changes remove an anomaly that currently allows councils to request a development application based on the type of venue and the type of entertainment to be provided. This has the potential to be an unnecessary and highly undesirable hurdle to the provision of live entertainment in venues across the State. Nobody wants their local pub to have to lodge an entire development application simply to have a guitarist strumming quietly in a corner—especially when the same venue could install a big-screen television to broadcast sport, which would have a similar impact on amenity, without lodging a development application. It is really quite staggering, but that is the situation we are taking action against and remedying.
The proposed legislation will concentrate on what is really important: the safety and amenity of patrons and locals. Fire safety and construction compliance will be addressed at the development application stage while amenity impacts and population capacity will be addressed by the introduction of new provisions under clause 80A of the Act. This will put the emphasis on safety and amenity and not on whether the live entertainment should be allowed. Two of the biggest cities in New South Wales—the City of Parramatta and the City of Sydney—have already welcomed this proposal. Furthermore, in the bill before us we have provided that councils will no longer have to require repeat development applications for hours of operation of a venue.
They will have the power to give one up-front approval and the power to review some of the hours any time in the future if the venue is disturbing local people. The new provision, which is based on a New Zealand model, will allow for the reviewable component to be revisited when considered necessary by the content authority without the need for regular new applications. The bill provides that the reviewable condition provisions can be used only to regulate the extended hours of operation, not core hours of operation, and an extended number of people, not core numbers of people.
It is most distressing that Opposition members seem to care not a brass razoo about the bill. They are talking and chatting and moving around the Chamber. This is an important issue that affects many people who are employed in the music industry, which helps to build the culture and fabric of this great city and the entire State. This is a very important bill, and I hope Opposition members are taking note of this debate. The Government is on the front foot when it comes to making changes in this area. The regulations will require the consent authority to identify clearly that the consent is subject to a reviewable condition.
If an applicant is dissatisfied with the review he or she will be able to appeal to the Land and Environment Court, as per the usual planning process. These changes follow a number of other initiatives proposed by the Government to help boost the State's live music industry, thus stimulating new jobs and entertainment opportunities. The Government is committed to promoting live music and other forms of entertainment in pubs, bars and other public venues across New South Wales. The bill is a clear demonstration of this approach.
In preparing for this debate I consulted a number of musicians to gauge their views about the bill. I spoke to Tomson Sowonja, who lives in Croydon in my electorate and who has been a rock and roll guitarist for about 10 years. He told me that in the past decade he has seen many changes in the type, style and number of venues available for use by artists and musicians. He said that many smaller venues have disappeared altogether—which is terribly sad. Because of economies of scale it is often difficult for owners to offset costs, so they try to find ways of making ends meet. Unfortunately, this sometimes means installing a row of poker machines in a room in which bands used to play. He also said that it is very important that venues that are committed to music run a subsidiary facility, whether a bistro or gaming machines, to subsidise the activity of live music.
Mr Brad Hazzard:
Passing mention, Virginia?
Ms VIRGINIA JUDGE:
I am saying it is about choice. We want to make sure that everyone has a choice of venues. Our clubs are absolutely fantastic and everyone in the club industry knows that since my entry into this place in 2003 I have been extremely proud to support the club movement. This legislation is about choice and supporting live music. Even some landmark venues—for example, the Annandale Hotel and the Hopetoun Hotel in Surry Hills—have sometimes had to subsidise their ability to operate as live music venues, according to Tomson, with adjunct activities. A whole new generation of musicians is emerging. There is sometimes almost a bottleneck, with so many musicians but not enough venues in which they can perform. It is sad to have these wonderful talented young people, who give up so many years through dedication and practice to become great musicians, and not have the venues so that we can all enjoy their wonderful talents and gifts. I am pleased that so many people agree with me.
Mr Brad Hazzard:
It has got nothing to do with the bills, but I agree with the member for Strathfield.
Ms VIRGINIA JUDGE:
It is entirely about the bills because they allow this to happen. It is sad that the member has not read the bills. Mr Sowonja also said he has travelled widely, including overseas. He said it is sad that there is less work and that other musicians have had to move elsewhere to keep performing and to keep a roof over their heads. It is all very well to talk the rhetoric about Sydney as the city for tourists but we must make sure it is a city for people and its residents. A city is not just about businesses, which are important; it is about having a variety of venues where people can attend, reconnect and talk to each other. It is about culture and building our communities, which is another reason why people, our urban consumers, love to live in our beautiful city.
Newtown has a new demographic and its residents want to have venues. In the past a huge number of our great bands cut their teeth in such venues. They should be available to musicians and poetry slams again. It binds a community together; it is part of building a special character and uniqueness of our great cities of Sydney and Parramatta and in rural areas. People can make music and share time, friendship and fellowship together. I also spoke to Keegan O'Shea from South Strathfield who has been on the music scene for some time. He is a guitarist who has been in a band for five years. He has noticed that the scene has become more and more sterile. He said it is different in Victoria and Queensland, and New South Wales needs to make sure that it is ahead of everyone else.
He is keen on the reforms in this legislation, which he thinks will ease the burden, and he is looking forward to a cultural change brought about by them. He said that at some venues he is asked, "How many people will you bring in? If you play can you guarantee 100 people will come? Have you cut a CD?" Basically, he had to justify his attendance and on one occasion he had to pay for a sound technician afterwards.
Mr Michael Richardson:
Do you like the 130 pages of the bill?
Ms VIRGINIA JUDGE:
That is not it. I spoke to another very important person, John Heartacre from Croydon near the Strand in my wonderful electorate. He said:
Mr Michael Richardson:
I am a musician in a small jazz group. I find the smaller venues intimate and personable. I would love to play in those [sorts of] venues. Musicians like myself don't like the "beer barns".
Point of order: With the best will in the world, we are debating a planning bill, not a bill about the live music industry. If there is a small section in the bill that has caused the member for Strathfield to waffle on for the past 13 minutes about the live music industry, that is okay, but then she is guilty of tedious repetition. She has repeated herself over and over again about how this bill is all about live music.
ASSISTANT-SPEAKER (Ms Alison Megarrity):
Order! Raising a point of order does not provide the opportunity to make a speech. The remarks of the member for Strathfield are relevant. Had the member for Castle Hill read the bill he would know that the issues raised by the member for Strathfield are directly relevant. I am sure members are receiving representations on this issue. The member for Strathfield may continue her contribution.
Ms VIRGINIA JUDGE:
Absolutely. It is a shame members opposite do not bother to do their homework. I am glad I do not live in the electorate of the member for Castle Hill because he obviously does not support the music industry and live entertainment. What a shame! What a pity!
ASSISTANT-SPEAKER (Ms Alison Megarrity):
Mr Michael Richardson: Point of order: I strongly support the music industry. If I had read the bill I would find the reference. In fact, no bills are on the table.
Order! The point is noted.
Ms VIRGINIA JUDGE: I have a copy of the bill. Obviously, he is not on the same song book that I am on. To conclude, this is a wonderful initiative. One of my staffers spoke to David Weir, another musician. I spoke to Mr O'Shea and Tomson personally. Mr Weir said he had been working in different styles and he supports this legislation. I have received lots of emails from people who are very happy that the Government is introducing this initiative. I will be gracious and say that all of us, including members of the Opposition, will benefit when we build communities through live entertainment and allow people to express their talents. I wholeheartedly commend the bill to the House.
Mr MALCOLM KERR (Cronulla) [10.06 p.m.]: All members are indebted to the member for Strathfield for taking us down that musical journey. It could be described as a speech of note. I do not know whether during her singing career she ever sang "Kansas City". If she did she may have learnt some of the building height requirements contained in the lyrics. Despite her finale, the Environmental Planning and Assessment Amendment Bill will not benefit the people of New South Wales. In fact, the way the Minister conducts himself and planning in New South Wales, and the way he has orchestrated this situation is not to the benefit of the people of New South Wales. That is not just my opinion. I refer to the Legislation Review Digest of the Legislation Review Committee, on which there is a majority of Government members. The committee came to a number of unanimous conclusions that should greatly concern the House and that support what was said by the member for Wakehurst. He indicated that he wants this matter referred to a Legislative Council committee for investigation. Page 29, paragraph 77, of Legislation Review Digest No. 7 states:
The Committee notes that a consent authority cannot, without the approval of the Minister, refuse a Crown development application or impose a condition on its consent to a Crown development application
The Committee considers these official powers appear to unduly trespass on individual rights to have their views heard and represented by making the consent authority unable to refuse or impose conditions on a Crown development application without the prior approval of the Minister.
Other matters are contained in paragraph 81, page 30, which states:
The Committee has concerns about procedural fairness and the right to review in respect to the proposed section 79C (1A), to be inserted by Schedule 2.1 , by legislating away the need to give notice and to the right of review, and considers individual rights and liberties may be unduly trespassed
On page 30, paragraph 83 states:
The Committee will always be concerned about legislation or regulations that authorise administrative decision-making without providing for the right of those affected to be represented where there is a right to be heard, especially if there are to be no appeals from determinations of the Planning Assessment Commission after a public hearing, and persons qualified to apply for reviews for certain classes of development or determinations may be limited by regulations.
Paragraph 84 states:
Therefore, the Committee considers this may be an undue trespass on the right of procedural fairness and access to justice, by proposing powers to remove the current unlimited right of a person to be represented arising from the proposed powers to make regulations prohibiting or limiting the right of persons under the Act to be represented at reviews by the Commission or before other planning bodies.
Paragraph 88 states:
The Committee is concerned that the proprietary rights of the remainder of the owners may be unduly trespassed and refers this to Parliament
The committee's concerns are then specified. Paragraph 90 states:
The requirements that the acquisition of property be on just terms and be appropriately compensated as a result of acquisition are important safeguards of the right to property. The Committee is concerned about the Bills departure from the Land Acquisition (Just Terms Compensation) Act 1991 in respect of its provisions on the determination of compensation.
On page 32, paragraph 95 states:
The Committee notes that the above clauses provide for the compulsory acquisition of subdivision land or interests in land without the application of the provisions (or modified application) of the Land Acquisition (Just Terms Compensation) Act 1991 with regard to the valuation of land compensation; determination of amount of compensation
Paragraph 100 states:
The Bill proposes that a planning agreement can be registered if the agreement relates to land under the Real Property Act 1990 or if the agreement does not relate to land under the Real Property Act, then where there is agreement to the registration by each person who has an estate or interest in the land Therefore, the proposed clause 21 (1) of enabling the Minister to approve the addition of any party to the planning agreement without specifying requirements for a relevant connection, appears to be very wide in scope and may erode the rule of law with regard to the principle on the privity of contract since the planning agreement can be registered by the Registrar-General under the Real property Act
On page 33, paragraph 103 states:
The Committee notes that the scope for policies that may be made "with respect to any matter that is, in the opinion of the Minister, is of State or regional environmental planning significance", appears to be extremely wide.
Paragraph 104 states:
The Committee also considers that in the circumstances of where there is no requirement for consultation with other Ministers and public authorities (other than the Director-General of National Parks and Wildlife) in the drafting and preparing of the SEPPs, along with the wide power of the Minister to determine any matter that is, in the opinion of the Minister, of State or regional environmental planning significance, may make personal rights and liberties unduly dependent on an unfettered discretion on the making of SEPPs and an insufficiently defined administrative power. Accordingly, the Committee refers this to Parliament.
On page 34, paragraph 107 states:
The Committee notes that the scope for the Minister's determination with regard to a gateway determination as set out in the above proposed section is very wide, including the extent for community consultation requirements and other consultation
Paragraph 108 states:
The Committee considers that this may make individual rights and liberties unduly dependent on an insufficiently defined administrative power
Paragraph 110 states:
The Committee considers that it is appropriate to vary any maximum contribution level by regulation as such variation would be disallowable by Parliament. However, the proposed sections 116K (4) and 116L of allowing the Minister, by direction, to vary the maximum percentage for contributions, appear to be very wide, and unlike a contribution level to be varied by regulation, would not be disallowable by Parliament.
Paragraph 111 states:
The Committee further notes that no default maximum amount is set by the Bill in the event that the regulations do not prescribe an amount. The Committee is concerned that the failure of the Bill to provide a default maximum level of direct and indirect community infrastructure contributions may be an inappropriate delegation of legislative power
The Legislation Review Committee has raised a number of other matters. It is important that they be referred to. They appear at paragraphs 116 and 119 on page 35; paragraph 126 on page 36; paragraphs 128, 130 and 131 on page 37; paragraphs 136, 137 and 140 on page 38; paragraphs 142 and 144 on page 39; and paragraphs 147 and 148 on page 49. The importance of those conclusions is that they were made by a bipartisan committee, and they raise serious questions about the amount of power given to the Minister. If members opposite have absolute faith in the present Minister for Planning and believe that he can do no wrong, that he is all wise—
Mr Steve Whan:
All wise and all knowing.
Mr MALCOLM KERR:
I see, all wise and all knowing. I hate to break this to the member for Monaro, but he will not be Minister for Planning in perpetuity. I am sorry to break that to him at this time of the night as I appreciate the effect it will have on his sleeping habits. However, it is true, take my word for it. People lose office, people die; that is a fact of life.
ASSISTANT-SPEAKER (Ms Alison Megarrity):
Order! Members will cease interjecting and allow the member to continue his contribution.
Mr MALCOLM KERR:
I could bring in medical evidence that death is a fact of life, if that would convince members opposite. My point is that this all-wise, all-knowing Minister—in the eyes of the Government at any rate—will not be there in perpetuity. Other Ministers, who may not be all wise and all knowing, will exercise the same degree of discretion and power that the Government is investing in the present Minister for Planning. Another problem is that everyone accepts that the present planning system is in need of reform; after all, this Government has been in office since 1995. Planning is in a mess and that is why this bill was introduced. One problem with the current planning system, if it can be called a system, is that it is extremely complicated and has a great deal of unjustified red tape. The Environmental Planning and Assessment Amendment Bill 2008 increases both the complexity and the red tape. Madam Assistant-Speaker, I seek an extension of time.
Extension of time not granted.
The bill creates a huge range of overlaying decision-making bodies, including a planning assessment commission, joint regional planning panels, independent hearing and assessment panels—
ASSISTANT-SPEAKER (Ms Alison Megarrity):
Order! Members will allow the member for Cronulla to continue his remarks.
Mr MALCOLM KERR:
—as well as new review panels for the planning assessment panel and a joint regional planning panel for the appointment of planning arbitrators. As I mentioned, the bill gives unprecedented discretionary power to this Minister and Ministers in the future. Planning controls can be created without public consultation. These are totally undesirable aspects of the legislation. The Minister will refer any developments that he considers to be major developments to a new planning panel called the Planning Assessment Commission. Again, he appoints the people on the commission and therefore has direct control, in addition to being in a position to determine which developments are considered to be major developments. They are totally unsatisfactory features of this legislation.
The people who determine a local environment are opposed to this. The Minister has created an unprecedented coalition of communities opposing what he is doing—for very good reasons: they will lose the funding for parks and playgrounds that comes from developers by way of section 94 contributions.
Mr David Harris:
That is not right.
Mr MALCOLM KERR:
Then it will be interesting to hear from the Minister in his reply how he will safeguard the contributions in light of what he said about the way in which councils have administered those contributions and the effect of this legislation. I can assure members that the people of the Sutherland shire want contributions so that they can have parklands, green spaces and playgrounds. These are all part of any civilised society. That is why greater consultation should take place to ensure that those community facilities can be financed and people at the local government level can have a say.
Ms LYLEA McMAHON
(Shellharbour) [10.21 p.m.]: I have three words for the member for Cronulla—lazy, lazy, lazy! He had the audacity at this time of night to read verbatim for 15 minutes a tabled document that members of the House already had available to them. He also made a number of errors. This document refers to the draft legislation. In particular, the acquisition of land aspect is not included in the bill. As riveting as the member's speech may have been, he then had the audacity, after wasting our time by reading a tabled document—
Mr Malcolm Kerr:
Point of order: The member gave an undertaking that she had three words for me. She has used in excess of three words and has misled the House!
ASSISTANT-SPEAKER (Ms Alison Megarrity):
Order! There is no point of order.
Ms LYLEA McMAHON:
His seeking an extension of time after that display of laziness shows that some people have the hide of a rhinoceros.
I, on the other hand, am pleased to speak in support of the Environmental Planning and Assessment Amendment Bill 2008. The biggest winners from this package of planning reforms are the mums and dads, particularly those in my electorate. Under these changes working families will be able to get approval for small projects without unnecessary cost or delay. The process for small developments that comply with a set of clear rules will be streamlined. That is not the only thing in this package for mums and dads. We are also introducing new cost-effective reviews and appeals, which will again benefit working families. I particularly congratulate the Minister for Planning on this aspect of the reforms.
The bill includes not only a new cost-effective, non-legalistic right for applicants to seek a review, but also provisions allowing a third party to seek a review where a council's decision would result in development standards being exceeded. This new appeal right will increase the accountability of councils and is consistent with the recommendations of the Independent Commission Against Corruption. It will be an important safeguard for locals, empowering those affected by inappropriate development to do something about it. Currently across New South Wales people are routinely spending up to $20,000 on lawyers and experts, taking often minor matters to the Land and Environment Court. As part of this package we are introducing planning arbitrators to undertake reviews of council decisions relating to minor proposals. Typically, such reviews would be sought by homeowners or small businesses. This will avoid those costly and intimidating court proceedings. It will also ensure access to a faster and cheaper review that is genuinely independent. Currently the only non-court review option is a section 82A review, which involves a council reviewing its own decision. This proposal is widely supported by planners and architects.
As I mentioned earlier, this bill also introduces a new type of third-party review known as neighbourhood reviews. This is an important part of the planning reforms because currently third-party appeals apply only in relation to designated developments such as coalmines and cement factories. This new type of review will apply to certain types of commercial and residential developments where, if approved, development standards for height and floor space ratio would be exceeded by more than 25 per cent. This review power will provide an appropriate check on decisions. It is appropriate that those who are directly affected by such decisions have a right to seek a review. Appropriately, the right to seek a review is limited to people who own or occupy property within the immediate vicinity of the proposed development and who lodged an objection to the development.
In addition, the bill includes provisions to ensure that commercial competitors are not able to take advantage of these reviews for the sole purpose of securing a financial advantage over a competitor. This is about moving to ensure councils exercise proper and appropriate discretion when granting consent to development that would otherwise result in standards being exceeded or not complied with. It will increase accountability and ensure local communities have a greater say in developments that affect the neighbourhood. I commend the Minister for including these important new neighbourhood review provisions in the planning reform package.
I also note that the bill includes important changes in relation to applicant appeals. The exposure draft of the bill provided that applicants other than for planning arbitrator matters could seek a review by a regional panel or the Planning Assessment Commission or appeal to the court. I understand that a number of submissions received during the consultation period raised concern about this proposal on the basis that it may undermine the role of the court. I understand that as a result of those submissions the amendment will not be pursued. Rather, as is currently the case, applicants may request that the council review its decision or they may appeal to the court. This will maintain the status quo. These changes to the bill demonstrate the effectiveness of the consultation process that has been undertaken in relation to the planning reforms. It shows the willingness of the Minister to listen and be responsive to the concerns expressed by stakeholders.
I note the bill also includes provisions dealing with amending development applications when a matter is before the court. This has long been a frustration for councils. The bill provides that where the court allows an applicant to amend a development application, other than a minor amendment, the court must order that the applicant pay the consent authority's costs thrown away as a consequence of the amendment. This will act as a disincentive to applicants seeking to amend their proposals before the court without community consultation or input from councils and other relevant authorities. The bill includes broad-ranging and important reforms that will result in a better, fairer and more effective planning system. I congratulate the Minister for Planning on this planning reform package. I thank the Minister for his consultation and for demonstrating that he listened to community concerns and amended the draft bill.
Mr JONATHAN O'DEA (Davidson) [10.29 p.m.]: I speak in debate on the Environmental Planning and Assessment Bill 2008. The New South Wales planning system is in need of reform. It is too complex, there is too much red tape, it is open to corruption and political interference, applications often take too long, and a great financial burden is placed on some parties. The bill, which proposes reforms related to environmental planning, development assessment, development contributions, certification of development, arbitration and reviews, contains some appropriate changes but must be rejected on balance largely because it undermines local communities.
While the proposed reforms recognise the need for change and suggest some real planning improvements, overall they do not represent appropriate planning reform; they represent a grab for power and control by the planning Minister and this New South Wales Labor Government. Today I read a research report prepared by the Property Council of Australia based on an independent poll of 1,000 residents of New South Wales, which found:
Residents of New South Wales have a poor impression of the planning approvals process in New South Wales. Almost half (45%) regard the process as poor or very poor and just 7% consider it to be good.
We genuinely feel for the thousands of homeowners and others across New South Wales who are affected by the malfunctioning planning system. The Opposition, likewise, is sympathetic to the property industry's frustration, as articulated by some of its professional bodies. A number of those bodies, which are now expressing support for this bill, have done so while noting requests for clarifications or further improvements. There is a danger of this Parliament passing a package of planning legislation reform that involves a complex house of cards.
The bill proposes a number of major reforms. Schedule 1 relates to environmental planning. Among other provisions it appears, sensibly, to provide for gateway determinations that would filter out planning proposals that are not credible. Schedule 2 relates to development assessment and provides for the establishment of the Planning Assessment Commission and joint regional planning panels. The Minister would be able to delegate part 3A projects to the commission for determination. The commission could provide advice, hold hearings, or undertake investigations, and it would operate as a regional planning panel in areas where one had not yet been established.
Joint regional planning panels would assess projects of regional significance and would comprise five members—three Minister-appointed members with planning expertise and experience, and two council-appointed members, one of which must have planning expertise and experience. I suggest that in order to promote trust and local democracy it might have been appropriate for the Minister to reverse the three to two split if he wanted a greater chance of local government support. I also note that there are provisions that allow councils to establish independent hearing and assessment panels to advise them on planning matters.
The bill contains amendments to review and appeal provisions. Applicants could appeal council decisions to a planning arbitrator in relation to certain development applications and development consents. Appeals to the Land and Environment Court relating to planning arbitrator matters would be restricted unless a planning arbitrator had reviewed them or the council consented to the appeal being made. The period for making an appeal to the Land and Environment Court regarding a development assessment matter generally would be reduced from twelve months to three months. Applicants could seek a third-party objector review regarding certain residential and commercial and mixed-use developments within 28 days of a determination.
The bill also proposes changes regarding complying developments and to certification processes and arrangements. For such significant reforms the Government appears to have deliberately restricted community consultation. Before introducing this bill to the Parliament on 15 May 2008 the Government released a draft exposure bill of over 200 pages, on 3 April 2008. However, it allowed review and accepted submissions only until 24 April, which clearly limited scrutiny and community debate on the bill. The Minister made some important changes following the release of the draft exposure bill, including the removal of section 9A in schedule 5, which allowed the compulsory acquisition of land for an urban renewal proposal or an urban land release. He also somewhat backed away from previous Government suggestions regarding control of section 94 funds. However, his concessions have not gone far enough.
Like a dodgy developer, the Minister has simply turned an appalling proposal into an unacceptable one. The bill undermines local government and democratic values. Local councillors perform a difficult job for little money in the spirit of community service. One of the great strengths of local government is that it is accountable to, and within close proximity of, the people whom it affects. The proposed joint regional planning panels directly undermine local democracy and grant the planning Minister an inappropriate level of centralised power. Some proposed changes in schedule 3 regarding development or infrastructure contributions also financially undermine local government.
Citizens rely on their local council to protect their planning interests and the character of their area. They rightly expect that the people they elect, not some unaccountable State government-approved bureaucrat, will make the decisions that affect them. Planning decision-makers must be in touch with the community and must be accountable to them. The New South Wales Government has inappropriately substituted local control for supposed efficiency. It is obvious that the Iemma Government does not properly accept the legitimacy of local government. Instead of working with local government in order to develop reforms that would improve the New South Wales planning system, the Government effectively has sidelined them. Minister Sartor's contempt for local government was again obvious recently when he imposed a planning panel on the Ku-ring-gai council area.
He is now imposing joint regional planning panels statewide in order to dilute the power of all councils. It seems as though councils are simply getting in the way of the New South Wales Government's plans to impose high-density housing wherever it wants, without regard for local infrastructure or character. It is no wonder that New South Wales councils and the Local Government and Shires Associations of New South Wales are against this bill. That has been made clear, for example, through the Local Government Association Keep it Local campaign.
Mr Anthony Roberts:
A good campaign.
Mr JONATHAN O'DEA:
It is a good campaign. The Parliament should listen to and reflect community expectations, including those reasonably expressed by the level of government closest to the people we represent. At this morning's shires association conference it was interesting to hear the president state that "local government is under an unprecedented attack" in the face of these proposed planning law reforms. I do not think the member for Monaro was there to represent his electorate.
Mr Steve Whan:
I was there.
Mr JONATHAN O'DEA:
The member for Monaro was not listening. I was certainly there and I heard the president say that.
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Davidson will direct his comments through the Chair.
Mr JONATHAN O'DEA:
I challenge the member for Monaro to stand up for those he purports to represent and for those who obviously feel that they are under an unprecedented attack from his Government. The New South Wales Government simply will not listen. The bill also undermines environmental and heritage protections. The New South Wales division of the National Trust of Australia understandably opposes this bill and is particularly concerned about the repeal of part 5 of the Heritage Act 1977. How can a Minister and department responsible for regulating new development also credibly be charged with overseeing the protection of our valuable heritage and areas worthy of environmental conservation? It is appropriate that the bill be referred to an upper House inquiry to allow for better and fuller consultation with all stakeholders, which then should result in an improved planning framework for all of New South Wales.
Mr PAUL PEARCE
(Coogee) [10.40 p.m.]: Given the lateness of the hour, I do not propose to go through the bills in detail as other members have. The Environmental Planning and Assessment Amendment Bill 2008, the Building Professionals Amendment Bill 2008, and the Strata Management Legislation Amendment Bill 2008 envisage significant change in the way planning and assessment will proceed in this State. The primary bill—the Environmental Planning and Assessment Amendment Bill—is complex. The complexity becomes very apparent if members have been required to explain the bill to members of their communities. However, complexity in and of itself does not determine the merit of the bill.
This bill has aspects with which I agree, some with which I disagree, and others which we should make up our minds about after we have seen how they work. However, it is important to view the bill in its totality to assess its impact. I will briefly deal with the primary bill and especially those aspects of concern within my community in the Coogee electorate. First is the change in the process for development consent depending on the various categories of application. The intent is to increase the percentage of complying development to closer to 50 per cent. The issues raised at the various public meetings I have attended can be summarised by one word: notification.
Residents recognise that most applications are minor and unlikely to impact adversely on them. However, the clear concern is that in the case of complying development the first notification, assuming their neighbour does not knock on the door, is when the consent is issued. This issue should be examined. From my reading of the bill, notification requirements will require that a courtesy notice be given to neighbours immediately after the complying development certificate has been issued and before work commences. The significant change in how complying developments currently are dealt with is that the proposal relating to minor non-compliance with complying development will not proceed. This emanates from the exposure draft.
I will try to minimise my comments on this aspect, but we have seen a significant change from the exposure draft to the bill introduced. This is indicative of the Minister having listened to a number of issues raised by a number of members, including me. However, the issues about which I wish to comment include the contributions of $20 million for retail-commercial development and $50 million for residential development being handled by the proposed joint regional planning panels. The real concern is that these major developments will be approved with little local input. I have explained the process to my local community, as best I understand it. The processes outlined in the bill, and within the available policy statements, reveal a high level of complexity. Other members have referred already to the formation of the committees, what they will deal with and how people will be able to be present at hearings. One issue about which I am concerned and which I have flagged with the Minister is that, whilst understanding the desire to try to keep lawyers out of the process in order to ensure procedural fairness, not everyone has the same capacity to represent themselves at these types of gatherings. I am confident that I will receive a positive response about the concept of having McKenzie friends.
Mr Anthony Roberts:
Some lawyers are people too.
Mr PAUL PEARCE:
I will not respond to that.
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Coogee will be heard in silence.
Mr Barry Collier:
I believe councils are very important.
Mr PAUL PEARCE:
So do I. Councils can nominate two of the five members of the panel, with one council nominee being qualified in the range of skills designated under the Act. From my reading of the bill, a council is not prohibited from nominating two elected persons, assuming one nominee has the designated skills. However, I believe the assumption is for the chief planner or a representative of the chief planner to be on the panel. I have sought clarification of the role of council planners in assessing an application, in particular, from what level within a council structure the joint regional planning panel [JRPP] will seek the reports of planning or related assessment staff. Most councils operate on the basis of a number of reports prepared, in many instances, by relatively junior officers which then are reviewed and consolidated by senior officers and a recommendation is submitted. I assume that it is this final report that will be submitted with recommendations to the joint regional planning panel.
The bill proposes a range of changed appeal mechanisms. Whilst I appreciate that the intention is to reduce costs and delays by having a non-judicial system for neighbourhood appeals—the so-called arbitrators—I am concerned that this may lead to an increase in complexity. My understanding of the concept of arbitrator essentially is what assessors originally were envisaged to undertake under the 1978 Act. To that extent, from a neighbourhood basis, this is a significant step forward, but it is important that we do not have the situation of a matter being heard and the parties involved then simply lodging an appeal elsewhere. Given that most instances involve neighbourhood matters, that process may occur. I hold out hope for the success of the arbitration process because I believe there is merit in the system.
I understand that arbitrators essentially will reconsider applications under section 82A of the Act. The current system of appeals to the Land and Environment Court favours those with the deepest pockets. It also excludes a third party from seeking a merit review of a decision with the only third-party appeal rights being under section 123 and what have been identified as designated developments. The proposal within this bill to permit a limited third-party appeal on merit is welcomed; however, I still seek clarification of the precise circumstances when the appeal right can be exercised. This should not be dismissed. For many years people within the community have argued in favour of merit appeals by a third party. That process will be granted in this instance under this Act in limited circumstances on neighbourhood-type appeals. The Minister deserves congratulations on implementing that process.
The changes to community contributions schemes under section 94 will deliver a fair result and act as a deterrent for those few councils who, frankly, have abused the section 94 system by accumulating contributions with no foreseeable plan of expenditure. However, I flag that community facilities should be interpreted broadly enough to allow for localised tailoring of needs. For example, where housing affordability is a major issue—particularly for older residents—developer contributions may be utilised by councils with a housing provision, such as was the case with my old council, Waverley. As a general comment, substantial criticism has been directed towards the role of elected councillors in the consent process. The Independent Commission Against Corruption [ICAC] looked at the corruption risks in the current process. Without dwelling on the issues, I point out that, where there have been convictions for corruption or findings of corrupt conduct in the planning processes in New South Wales, overwhelmingly it has been amongst professional officers rather than elected persons.
Bluntly, should one be of a mind, it is easier to corrupt an individual behind a closed door than it is to corruptly influence a majority on a council floor at an open public meeting. Beyond all else, residents expect transparency and accountability within the process. In order to ensure this, I strongly reject the argument of the development industry that the role of elected councillors should be marginalised. The so-called Coalition for New South Wales Planning Reform—a self-interest group if ever there was one—states in its "Planning Reform Score Card" that it wants 95 per cent of projects decided by professional staff and for councils to have stronger delegation policies. Without drawing the obvious conclusion as to why this coalition of developer interests clearly prefers dealing with professional planning staff rather than elected public representatives, it would help if they correctly informed themselves of the facts.
In an average council, between 94 per cent and 96 per cent of all applications it receives currently are dealt with by staff under delegation. The real problem that the development industry has is that those matters that go to council determination are their money projects where they invariably submit a State environmental planning policy 1 objection to increase the size of the building and improve their yield. That is not about good planning or quality design. The development industries' gripe is that they feel that elected persons do not understand their need to maximise yield of the site. Unfortunately, councillors have a habit of taking the local communities' views into account!
I have raised with the Minister the proposal to have template local environmental plans. It makes sense to have documents that are understandable and consistent from one local government area to the next. The current mishmash of zonings, development control plans and definitions doubtlessly are a problem. However, consistency of definition does not mean that one size fits all, and the Minister had made that point. There is an absolute need for localised tailoring.
The impact of a large dwelling or extension on a house on a 600 or 700-square-metre allotment is likely to be considerably less on a neighbour than is an unsympathetic minor addition on an inner-city terrace situated on a 120-square-metre allotment. I am aware that various codes are being developed. It is essential that these codes recognise urban variations. In my opinion, when it comes to complying developments, it is essential that in densely populated local government areas with small average allotment sizes that complying development be seen as the exception, rather than the norm.
I will now turn to one of the cognate bills, particularly the Building Professionals Amendment Bill 2008. Let me state at the outset that I have never agreed with the concept of private certifiers. In my opinion certification is clearly a regulatory function and, as such, should unquestionably reside with the local public consent authority. However, having said that, I recognise that private certification is a fact of life in New South Wales. I will briefly state why I have a problem with private certification. I know of a particular development which, unfortunately, has been dragging on for approximately 20 years in my electorate. It was the subject of a court decision and conditions of consent were imposed. A private certifier failed to ensure compliance with all the terms of the court-impose conditions of consent and public space considerations were ignored.
In spite of that, the private certifiers granted an interim occupation certificate based on the fit for purpose principle. The building is still not finished. It has had an adverse impact on the neighbouring building. The developer is sitting back, bringing in the cash. That is a very disturbing situation. The bill goes some distance to addressing some of the shortcomings of the current scheme for private certification. I will not deal with those matters in detail, but suffice it to say that the bill provides that private certification work being carried out by a company will be done by an employee who holds the correct level of accreditation. Private certifiers that are carrying out building certification work on behalf of councils will have to be accredited by the board. The bill deals with the whole process of accreditation and brings private certifiers under the provisions of the Independent Commission Against Corruption legislation. The legislation imposes an onus on private certifiers as well as the companies involved to work for the benefit of all, just as a council certifier must.
The bill also breaks the nexus that is developing very unfavourably between individual certifiers, individual developers and speculative builders. That nexus has been a constant source of problems. Anyone who has been involved in local government, or indeed in parliamentary representation, would be familiar with the problems that have arisen. The proposals within the Building Professionals Amendment Bill 2008 will serve to break that nexus. I agree with the intent of the bill and commend the Minister for bringing it into the House. I believe that the result will be for the long-term benefit of our communities.
I also support the other bill being dealt with cognately, the Strata Management Legislation Amendment Bill 2008. It is an excellent piece of legislation. On balance, whilst I have some continuing concerns regarding some issues within the planning bill, I consider the bills deserve our support. I commend the Minister for introducing the bills.
Mr ANTHONY ROBERTS
(Lane Cove) [10.53 p.m.]: It is indeed with great pleasure that on behalf of my community I oppose the Environmental Planning and Assessment Amendment Bill 2008. I state for the record that the Minister for Planning, Frank Sartor, has done for planning in New South Wales what the Black Death did for the Rat Appreciation Society of Europe in the Middle Ages.
Mr Steve Whan:
That is a bit rough.
Mr ANTHONY ROBERTS:
I apologise to the Black Death! The bill provides for multiple amendments to the Environmental Planning and Assessment Act 1979, and for minor amendments to the Heritage Act.
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Lane Cove will address his remarks to the Chair. Members will cease conversing across the Chamber.
Mr ANTHONY ROBERTS:
The Coalition opposes the Environmental Planning and Assessment Amendment Bill 2008 and will seek to move an amendment to have the bill referred to an upper House committee for inquiry. This amending legislation has been introduced on the back of the unsuccessful amendments introduced by the State Labor Government in 1997 that led to a doubling of development applications. The last major reform occurred in 2005 when the Minister for Planning, Frank Sartor, exercised powers under part 3A and allegedly created pathways to vast amounts of money from property developers who felt bound to donate to the Labor Party in return for favourable consideration being given to their major projects.
The Coalition wants a complete review of the Environmental Planning and Assessment Act, not tacked-on legislation. This amending legislation has been introduced in the Government's usual dodgy and slipshod manner that we have come to expect, particularly from the Minister for Planning. In relation to development applications worth up to $1 million, the bill provides for arbitrators to determine whether a development fits within a new range of complying developments, whose details will be set out at some time in the future, in regulations, codes or guidelines. There is an old adage:
Fool me once
Shame on you
Fool me twice
Shame on me.
The people of New South Wales have had a great deal of experience in dealings with Minister Frank Sartor. I have collected an assortment of files, and I will read to the House a mere selection. The first one I mention is the "Frank is the Most Useless Planning Minister in the World" file. The next one is the "Get Rid of Frank, He's Destroyed My Community" file. The next one is the "We Hate Frank Sartor's Ministry" file, and my favourite is the "Morris, Please Get Rid of Frank, He's Gonna Cost Us The Election" file. I will not table the contents of the last file I mentioned in case it embarrasses the Minister's colleagues. I must say that I am running out of space trying to accommodate the volume of correspondence that comes into my electorate office regarding the Government. For example, among the hundreds of similar letters I have received, there is this one:
I am a local resident in your electorate concerned about the community impact of the new planning laws introduced by Planning Minister Frank Sartor.
These State Government pro-Developer Laws will significantly tip the balance away from local communities towards the state government and developers.
Changes to planning laws are needed but not at the expense of local residents having their say about developments in their own street. Local voices matter.
I am sure my Coalition colleagues would agree. The letter goes on to state:
The changes will also dramatically reduce funding for local services like childcare, local roads and sporting grounds. I would like to know what services would be at risk in our area? Where will our community find the money for the next 150 childcare places now that we have less funding?
At this point, I must ask: What has the New South Wales Labor Government got against communities? What does it have against little kids who just want to go up to the playground and kick a footy? What about smaller children who cannot get a childcare place—something that the member for Burrinjuck is well aware of?
Mr Barry Collier:
You have lousy councils.
Mr ANTHONY ROBERTS:
The member for Miranda mentioned Hunters Hill. What has the Government got against Hunters Hill council, Lane Cove Council or Ryde City Council? There are Labor members on Ryde City Council.
Mr Barry Collier:
Stop misleading the House.
Mr ANTHONY ROBERTS:
You have Labor members on Ryde City Council.
ACTING-SPEAKER (Mr Thomas George):
Mr ANTHONY ROBERTS:
I apologise, Mr Acting-Speaker.
Mr Barry Collier:
Let him go. He's on a roll.
Mr ANTHONY ROBERTS:
I thank the member for Miranda. I am glad the member mentioned lousy representation because under this Labor Government my communities are suffering. For example, Hunters Hill council has 4,500 dwellings and has to accommodate 1,200 new dwellings, Lane Cove Council has 14,000 dwellings and has to accommodate 4,000 new dwellings, and Ryde City Council has to accommodate 14,000 new dwellings. That type of development is already impacting upon local infrastructure and local roads. Commuters cannot even get a train when they need one. My colleagues and I will discuss trains and commuters in greater detail at a later stage. Commuters are discussing the impact of planning legislation at great length.
Local councils are doing a great job. The latest campaign, Keep it Local, is highly commendable. The Coalition's shadow Minister for Infrastructure and Planning, the member for Wakehurst, is a great supporter of communities and local organisations, as is the member for Manly. We love our communities and we back our communities, but Labor members do not. The Local Government Association and community groups have made the point that there will be limited appeal rights if people are not happy with decisions made by the arbitrator. Only the applicant will be able to lodge an appeal in the Land and Environment Court. That adds a level of confusion and a level of uncertainty for local communities.
Mr Brad Hazzard:
Mr ANTHONY ROBERTS:
Exactly. Development that is considered to be major development by the Minister for Planning will be referred to a new planning panel to be known as the Planning Assessment Commission—not to be confused with the wonderful, august body of this Parliament, the Public Accounts Committee. Who will appoint members to the Planning Assessment Commission?
Mr Brad Hazzard:
Mr ANTHONY ROBERTS:
That is right. But the Minister will be able to override the Planning Assessment Commission if it does the dirty on him—like backbenchers are trying to do now. I fully support that move, although the Minister for Planning is good for our side of politics. That is the Labor mentality. Our major concerns with the bill include the reduced level of transparency. It gives unprecedented powers to Minister Sartor. Giving unprecedented discretionary powers to Minister Sartor is the equivalent of supplying automatic weapons to the prisoners at Long Bay jail. We just cannot trust him.
Mr Barry Collier:
Point of order: It is beyond a joke for the member for Lane Cove to suggest that the Minister for Planning is involved in some sort of criminal conspiracy. The member should withdraw the remark. He does not have to go that far.
Mr ANTHONY ROBERTS:
I would certainly never say that the Minister would supply automatic weapons to anyone. If the prisoners at Long Bay jail—who I am sure read Hansard
—object to the remark, I am happy to amend it.
ACTING-SPEAKER (Mr Thomas George):
Order! Has the member for Lane Cove withdrawn the remark?
Mr ANTHONY ROBERTS:
I withdraw. The bill destroys our community's involvement in its future. Communities are not created; they are nurtured and built over time. That is something the Coalition understands and respects. The Minister has made disastrous decisions in my electorate. The roads in Putney—a fatality occurred recently on Morrison Road—carry a volume of traffic 300 per cent above Roads and Traffic Authority guidelines. The Minister has ridden roughshod over our local councils. The Riding for the Disabled Association has been displaced and we have had to fight tooth and nail to ensure the residents of Weemala, Royal Rehabilitation Centre, continue to receive the accommodation and care they need. And this is only the beginning.
My constituents are fearful that the community in which they have grown up and live and to which they have contributed significantly will be handed over to developers. They are worried that their lifestyles will be crushed and their housing bulldozed to make way for ridiculous high-rise buildings simply to please developers. More tinkering through this ridiculous bill and giving greater power to the Minister for Planning will cause further disarray and angst and produce more bad planning in our community. There is nothing better or fair about this bill, and the Opposition will punt it. The bill must be considered fully in the Legislative Council. My constituents are not happy with the bill, and they certainly commend the Coalition for opposing it.
Mr DAVID HARRIS
(Wyong) [11.02 p.m.]: Some of the contributions to the debate on the Environmental Planning and Assessment Amendment Bill 2008 by Opposition members have been quite entertaining and thoroughly theatrical but very short on fact. It is clear either that they have not been briefed properly about the bill or that they do not understand it. The object of the bill is to amend the Environmental Planning and Assessment Act 1979 to implement improvements to the New South Wales planning system resulting from proposals in the discussion paper released by the Department of Planning in November 2007. In speaking in support of the bill, I will comment particularly on a couple of key areas of concern in my electorate and lay to rest the notion that there has not been sufficient consultation.
There has been some criticism that there has not been enough community consultation about the changes. I will kill that myth right now. Some 538 formal submissions were received on the discussion paper, "Improving the NSW Planning System". An additional 124 form letters were received. The Royal Australian Institute of Architects and the Planning Institute of Australia conducted two surveys as part of their submissions.
Mr Brad Hazzard:
Do you know what your council said?
Mr DAVID HARRIS:
I will get to that. A total of 286 members of the two institutes responded to the survey. Just under half the 538 formal submissions—or 46.7 per cent—were from residents and community groups, 22.3 per cent were from professional practitioners and 21 per cent were from councils. I want members to appreciate the number of people who responded to and commented on the discussion paper. Some 180 submissions were received from residents, 71 from community groups, 104 from individual councils, three from peak local government bodies, eight from regional organisations of councils, two from individual councillors, 120 from planning professional practitioners, 21 from State government agencies, 26 from industry and three from members of Parliament.
Additionally, in December 2007 as part of the consultation process on the proposed reforms Department of Planning staff conducted roadshow information sessions throughout New South Wales so that local government, industry and community stakeholders had the opportunity to learn about the proposed reforms. Eleven venues across the State hosted the road shows, which involved more than 1,000 people and provided the opportunity to comment further on the proposed changes. Guess what? The Government listened to the comments. Following wide community consultation, the New South Wales Government and the Minister for Planning made a number of changes to the original proposed planning reform package. These important changes deal with issues raised during the consultation process.
They include deleting from the bill a proposal to clarify council powers to compulsorily acquire land for the purposes of urban renewal. Some Opposition members think that is still part of the bill. They do not know that it has been removed. Also deleted is the proposal to allow accredited certifiers to approve minor non-compliances with complying development. Community consultation also led to the clarification that local environmental plans cannot be made if required community consultation has not occurred. Therefore, the community must be involved in making those plans. The Government has ensured that applicants cannot forum shop appeals by going either to an independent panel or to the Land and Environment Court. Applicants must go to the court. We have maintained protections to prevent new developments in Sydney's drinking water catchment unless they have a neutral or beneficial water quality effect. We have broadened the range of people who may be appointed as Planning Assessment Commission members to include legal, engineering, traffic, transport or tourism skills.
The Department of Planning, not councils, will appoint a planning arbitrator to review a council determination to avoid a potential or perceived conflict of interest. The Government has expanded provisions to allow more than one arbitrator to be appointed to review complex matters. We have clarified that libraries and community centres together with volunteer rescue and emergency services are key community infrastructure that councils can fund automatically through local infrastructure levies. That change, which also includes parks and so on, was obviously missed by many Opposition members. The bill also ensures that councils can no longer double dip by levying both at the subdivision stage and on the approval of a dwelling house development application envisaged in the subdivision. All these major changes were made after extensive community consultation.
So why are these changes necessary? The reforms proposed by the New South Wales Government are aimed at modernising the planning system and better equipping it to deal with challenges such as population growth, urbanisation, natural resource management, job trends and changing community expectations. Everyone agrees that red tape must be cut to make the system more accessible for mums and dads, because the research shows that they use the system most. The planning system is subject to continuous public scrutiny and sometimes criticism—we hear plenty of that from those opposite. This legislation addresses public concerns and delivers reforms that are long overdue.
The Department of Planning produces an annual performance monitoring report on the development application assessment times of all New South Wales local councils. The 2006-07 report showed that small-scale residential development applications took an average of 57 days to process, with new single dwellings taking 78 days. About 60 per cent of all development applications determined by councils were for new homes and about 97 per cent of all development applications were valued at under $1 million. The 2006-07 findings reveal a clogged, inefficient planning system, in which homeowners are waiting too long for approvals to build homes or renovate. In my electorate there is a deal of concern about the calculation of levies for local infrastructure and the rights of existing residents. In Wyong, the issue of levies, or section 94 contributions, is very important. We are in the process of trying to release two areas for important investment, which will improve services and provide much-needed jobs for the area.
The Wyong employment zone is a proposed industrial and commercial precinct, which will hopefully provide 7,000 jobs for local residents. Its importance to the local Wyong and Central Coast economies cannot be underestimated. It is a vital area. It needs the necessary infrastructure—roads, water, and sewerage et cetera—to get up and running, which is very costly and there is an expectation, rightly, that developers who will profit from the opening up of this precinct will make a contribution. However, there can come a point when the required contribution is too prohibitive and investing in the area is too expensive, which is what has happened in the Wyong employment zone. The same applies to the nearby Warnervale township.
The Government's approach to establishing section 94 contributions is sensible. It identifies key infrastructure that must be provided but also it allows extras if local councils can justify the need and provide detailed costings and timelines. Councils collect money but nothing ever happens. One developer told me that eight years ago he was promised that certain facilities would be provided for the people who built in his estate, but they have still not been provided. The money was collected but was not spent. With the need for affordable housing and important employment generation we must ensure that we do not kill the goose that lays the golden egg by levying investors too highly. We must get an economical balance between levying for infrastructure and encouraging investment in new developments that benefit the community.
Contrary to some of the scaremongering about the levy, councils will be able to continue to impose levies for regional facilities but the system will hold them more accountable. That is both fair and reasonable and something most people to whom I have spoken in the community support. The bill also protects the rights and amenities of neighbours. The vast majority of development proposals assessed under the planning system are for renovations to existing houses or applications for new houses. The Government is introducing a series of codes that give homeowners certainty about the rules that apply to their property and their neighbour's property to ensure that everyone knows the rule—a complying development under the code will not impact on neighbours.
At present, the right of objectors to challenge decisions or undertake merit appeals only exists against what is called designated development—typically development with potentially major local impacts such as mines, quarries, waste management facilities or chemical industries. However, the Government is proposing to expand the ability to challenge other types of approvals, further extending the New South Wales planning system's reputation as one of the most legally inclusive and accountable in Australia. This legislation proposes to allow persons affected by development to seek a review of the council's decision if it exceeds planning controls significantly. This could include development where planning controls are over 25 per cent of the scale of what the project should be. The reforms also propose to shift reviews of determinations or deemed refusals of small development proposals to planning arbitrators in the first instance, unless the applicant and council agreed to go to court. These arbitrators will conduct non-adversarial reviews, free from legal argument, at a minimal cost. These reforms are designed to drive down legal costs and make reviews more accessible to households unhappy with the determination.
Last Thursday the Minister's office held a briefing on changes to the planning system for the benefit of Central Coast interest groups. Present were representatives of community groups, Wyong and Gosford councils and business groups. A detailed explanation of the planning changes was undertaken and the assembled group was able to pose questions. At the end of the almost two-hour session the response was very positive, with comments such as "long overdue" and "very comprehensive". The changes to the system are designed to improve the overall functionality and fairness of the system. Finally, let us examine some of the general commentary on the proposed changes to the system. As was mentioned earlier, the Property Council of Australia carried out a survey through Auspoll. The accompanying letter from Ken Morrison, New South Wales Executive Director of the Property Council of Australia, states:
In a bid to close the debate on planning reform, and to address criticism that the current reform package isn't supported by the community, the Property Council of Australia commissioned an independent poll of 1,000 aged 18-plus residents of New South Wales.
Outcomes were then listed. Finally it says:
The data makes extraordinary reading regardless of political voting persuasion. Support for the proposed reforms is overwhelming. We ask you to take a moment to read the comments.
Patricia Forsythe wrote:
The reforms proposed by the Government are reasonable and moderate. The legislation is supported by a broad alliance of industry groups.
We believe the current planning system no longer serves community interests.
As a member of Parliament I strongly urge you to support this important legislation and bring commonsense back to the planning system.
The changes in the legislation are well thought out and will, when implemented, provide a stronger, fairer system. They are necessary. I commend the bill to the House.
Ms KATRINA HODGKINSON
(Burrinjuck) [11.45 p.m.]: The Coalition will not support the Environmental Planning and Assessment Amendment Bill 2008. We will oppose it. Instead, the Coalition will support the Keep it Local campaign, www.keepitlocal.org.au, which has been launched in association with the Local Government and Shires Associations whose conference I attended this morning. I commend the associations for their fight on behalf of their local communities, in particular, Genia McCaffery and Bruce Miller, mayor of Cowra in my local community. As one would expect, the Opposition supports local government and its local communities—that is what we are here for.
The purpose of the bill is to make multiple amendments to the Environmental Planning and Assessment Act 1979, with minor amendments to the Heritage Act and other miscellaneous Acts. We know that this Act has been reviewed and amended on several occasions. In 1997 amendments that were designed to halve and significantly reduce the number of development applications resulted in their being doubled from 60,000 to 120,000—another failure by this Government. In 2005, part 3A was introduced to give the Minister for Planning increased powers to pull in and determine State significant development, as the shadow Minister for Planning, the member for Wakehurst, and the member for Pittwater have outlined already in their contributions to this debate.
Minister Sartor announced a review during early 2007, and a discussion paper was followed by a draft bill. Then the current bill was introduced and, as we have heard, so-called consultation occurred in less than eight months. As soon as the legislation was introduced into this place I contacted councils in my area and asked them to read the legislation and advise me of their concerns. A constant concern was that they did not have time to go through the legislation due to its size and striking complexity. The detail in "Legislation Review Digest No. 7 of 2008" of the dozens of concerns and recommendations of the Legislation Review Committee in relation to this legislation is extensive. It is important to raise those matters in this place because the Legislation Review Committee undertakes a very important role.
I will touch on a couple of those concerns in my brief comments. Councils in my electorate have expressed concern that they do not have access to appropriate section 94 levies to provide local facilities under the legislation. They will not get financial support to run new joint regional planning panels. They will not have a say on developments next door or nearby to them.
That is very import in country towns, because no two country communities are the same. Certainly the difference between metropolitan communities and rural communities can be quite stark. For example, compare Gunning with Brookvale—not many things are similar, particularly the general environment, the rainfall, the population, the size of residences and the general communities. A continual concern addressed to me is that there cannot be one-size-fits-all legislation on something that is as important as planning. That is one of the reasons that councils exist: to assist with those sorts of issues.
Councils have raised concerns with me about the expansion of certifiers' roles in development approvals. Some local communities have experienced problems in the past that emanated from certifiers. It is important to note that the last major reform of this legislation was in 2005 when Minister Frank Sartor introduced part 3A and a free pass to making a significant amount of money through donations from property developers who felt bound to donate to the Labor Party. I know that there have been many inquiries about that in the public arena over the past several months, to get consideration of their major projects under part 3A. The word is that when one gets the dollars to Sussex Street, one gets through to the Minister. I heard from Burrinjuck constituents about Sydney hotels—
Mr Steve Whan:
Point of order: I draw attention to Standing Order 73, relating to imputations of improper motives and personal reflections on members of either House. The member's suggestion that part 3A results in improper contributions and improper motivations of approval of projects is in breach of that standing order. The member should withdraw that comment and desist from making those sorts of imputations.
ACTING-SPEAKER (Mr Thomas George):
Order! Unfortunately, I did not hear the comments as I was speaking to the member for Wakehurst.
Mr Brad Hazzard:
I apologise. It was all my fault—as everything is!
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Wakehurst will resume his seat. I ask the member to repeat the comment.
Ms KATRINA HODGKINSON:
I highlight that it was a comment that has come to me from my constituents.
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Wakehurst will resume his seat.
Ms KATRINA HODGKINSON: There was nothing defamatory about it; I was just passing on concerns that have been relayed to me by my Burrinjuck constituents who have interests in Sydney properties such as hotels. It is concerning also that under this legislation, for development applications of up to $1 million, arbitrators will determine whether a development fits within a new range of compliant developments that are to be detailed at some future time in what could be a regulation, a code or a guideline. We do not really know what it will be. As the member for Wakehurst outlined, and which bears repeating, the problem is that so much detail is missing in the legislation. Neighbours will not receive notification of development until after approvals are given. There will be appeal rights to the Land and Environment Court only by applicants. Objectors or councillors will not have appeal rights.
Really, the legislation gives a free rein to the Minister for Planning who, at this stage, is Frank Sartor. We do not know who will be the Minister for Planning in the future. Members opposite might have full confidence in Minister Sartor, but I certainly do not. I know the residents of Burrinjuck certainly do not. I know the councillors of Burrinjuck certainly do not. A future Minister who may not necessarily have our trust will have a free rein. We have to make sure that the legislation is not so free wheeling gives so much power to one individual, which is what it does. There may not be 100 per cent confidence that a future Minister will not take advantage of the legislation. I am so concerned about that that I will vote against the legislation. I will outline a few concerns that have been raised with me by some of my shires. Almost universally, the shires do not have sufficient time to look into the detail of the legislation. In a letter to me, the group leader of planning and environment of Young Shire Council, Craig Filmer, wrote:
In response to your letter of 6 May 2008, please find attached reports to Council in February and April 2008
Generally I would advise that Council professional Staff are disappointed in the reforms, the agenda, the faux consultation and the lack of applicability of most reforms, west of the Great Dividing range. Also and of particular interest is the disdain that the Bills treat longstanding professional Building Surveyors with a lack of skills recognition. As a result, Building Surveying is now a divided profession with no serious qualification for dual Health and Building Surveyors and our professional Institute (Australian Institute of Building Surveyors) [is] in extreme conflict between Private Certifiers and Council employed Building Surveyors. This is to the point that our Union is now defending the ethics and profession of Council employees over our professional learning body
It all appears a done deal unfortunately.
Craig Filmer enclosed an extract of a business paper presented to the Young Shire Council meeting in April 2008 entitled "NSW Planning Reforms—Improving the NSW Planning System  [Report by Group Leader (Planning & Environment)]". That report states that the council has concerns in relation to the key issues of exempt and complying development; panels, their funding and their operational levels; empowering certifiers with assessment of development application matters; recognising adequately the skills of local government building surveyors and their ongoing maintenance of accreditation; and maintaining localised planning controls. The report states that those matters:
Are dealt with summarily and will not, we believe, work to streamline the process but moreover, restrict or add more layers to the already complex planning system. The application of the Act in the bush varies markedly from in the city due to availability of resources and competition and the system is not flexible enough to address this.
I also received correspondence from Cootamundra Shire Council and Cowra Shire Council which referred the bill to the general manager's department. A significant report was received from Weddin Shire Council containing a recommendation from the Mayor, Councillor M. A. Simpson, advising support to the Local Government and Shires Association campaign for a freeze on the implementation of the State Government's draft exposure bills for planning changes, and a parliamentary inquiry into the New South Wales State Government's draft exposure bills on planning changes. That is exactly what the Opposition is setting about doing. As the shadow Minister for Planning, the member for Wakehurst, has advised, we are opposing the bill and we look to an inquiry being held in another place. Mr Acting-Speaker, I request an extension of time.
Extension of time not granted.
The Upper Lachlan Shire Council wants a law change inquiry. I am very disappointed that the Government is attempting to gag me in that regard because significant concerns have been raised with me right across my electorate. This is one of the most significant legislative changes that has come before the House. Upper Lachlan Shire Council Mayor, John Shaw, opposes the State Governments' proposed planning changes. He believes they will have serious implications for the Upper Lachlan community. He said:
The State's pro-developer laws are taking control away from local communities, which is why we're calling for a freeze on the implementation of the changes as well as a Parliamentary Inquiry.
A letter to me from D. W. Philpott, General Manager of Boorowa Council, stated:
At the 28 April 2008 meeting of Council, discussion took place regarding the Planning Legislation and the concerns raised by the Local Government and Shires Association and the short timeframe for consultation with Local government, Council resolved:
"To endorse the actions of the Local Government and Shires Association and that a letter of concern be written to the Local Member, Ms Katrina Hodgkinson."
That was a reference to the Keep It Local Campaign. Time will not permit me to go through the many serious problems and anomalies in this complex piece of legislation, one of the most serious of which is giving unfettered power to an individual, no matter who that individual is, in control of the planning department. I have extreme concerns about that and I believe they are justified. This Government has once again failed to address the very real concerns that have come from the Local Government and Shires Associations and councils across the State, as well as individuals and people who will lose power under this draconian legislation, which is not in the best interests of our communities. [Time expired
Mr PHILLIP COSTA
(Wollondilly) [11.30 p.m.]: I appreciate the opportunity to speak on the Environmental Planning and Assessment Amendment Bill as my interest in local government, in particular, goes back two decades and continues to this day. I have been wondering which bill some members have been referring to in relation to the section 94 contributions plans and the comments about what can and cannot be included. I refer to the explanatory note on page 26, which says that key community infrastructure is local roads, local bus facilities, local parks, local sporting, recreational and cultural facilities and local social facilities. It goes on to list others. Today a number of members have said that councils will not be able to impose levies for those sorts of pieces of infrastructure, and that is just not right. It is incorrect.
I thank the Minister for Planning because in Macarthur we have brought the councils together with all the professional staff and gone through this bill in detail. We have spoken to them about their concerns and have had a significant amount of dialogue locally. My local councils have worked through this with us, so it is not being done in isolation. The need for planning reform is well established. As I said earlier, I have extensive experience in local government and, in fact, I trained first as a planner. It is an area in which people were looking for change over time. The Government has consulted widely in putting this package of planning reforms together. For example, it has looked at systems from other States and it has held forums. A previous speaker referred to that so I will not go into it in detail.
A discussion paper and an exposure bill have been published and distributed. Mr Acting-Speaker, you may be surprised to hear—or maybe not because you are such a learned person—that I am reliably informed that of the 126 principal recommendations in the discussion paper "Improving the New South Wales Planning System", 71.4 per cent were generally supported by councils across the State. The package before us today is backed by a broad alliance of stakeholder groups including those representing the practitioners, such as the Planning Institute of Australia and the Royal Australian Institute of Architects.
However, some concern persists among councils that this legislation will undermine their authority. In reality, joint regional planning panels will consider only a few hundred determinations each year across the State. We anticipate that when the reforms are up and running local councils will continue to determine more than 97 per cent of all development applications in New South Wales. Larger regionally significant proposals, some of which are currently dealt with by the State, will be dealt with by the joint regional planning panels, on which councils will have two representatives. I should also mention that those two council representatives will rotate and if there is a development in a particular council area the two representatives on the panel will come from that council.
In Macarthur, for example, where we will have four councils one day—we are looking at Liverpool joining Macarthur—if there is an application in the Wollondilly area the two representatives will come from that council. Statewide complying development codes will help to free up council bureaucracies to deal with the more significant applications. It is important to note that most of the applications that will be picked up by the codes are currently dealt with by council staff, not elected councillors, under delegated authority.
If we take off the blinkers it is clear that this legislation contains a number of wins for councils. I want to mention a few. There is a general feeling that the existing plan-making process is too complex. I have been working on our local environment plan [LEP] in Wollondilly for the past five years and I know how complex it can be. It is confusing and time consuming. Figures show that minor local environmental plan amendments take an average of 196 days, while a major LEP can take an average of almost five years, as is the case locally. This legislation will help to fix the problem. The legislation will create a new gateway process to provide early feedback to councils on whether new LEPs are justified. We are also moving to tailor the plan-making process to the scale and size of a proposed plan. These provisions will benefit councils significantly. They will provide greater certainty and cut a lot of unnecessary red tape.
I want to refer also to concurrence and the role of the State. We are also cutting red tape for councils in the area of concurrence. The Government is getting its own house in order, and rightly so, by reforming the way that State agencies deal with requests from councils to deliver advice or approvals on particular applications as required under a number of planning instruments and legislation. We have had to deal with this consistently in Wollondilly. In some instances we just cannot get State agencies to support or make comment on applications. We are slashing unnecessary duplications and introducing three-week deadlines for concurrence, with a new deemed approval period at the end of 21 days if the agency has not responded so that councils can get on with the job. It is about time because sometimes we have major problems in approving processes in my shire.
On the issue of certification, councils will be given greater powers to enforce development consent with new investigation powers and mechanisms to recover costs of enforcement action. Under this legislation councils will be able to issue stop-work orders to immediately stop unauthorised work or work that affects adjoining land. A consent authority will be able to require payment of an enforcement bond as a condition of consent. That is a good thing. This is an important reform to assist councils in funding necessary enforcement action where developers breach conditions of consent. The bill will also enable councils to recover the full costs of assessing unauthorised works when they are asked to issue a building certificate for recently completed unauthorised work. That is a very important condition because I am aware of a number of situations, particularly in my area, where the cost of pursuing unauthorised work can be quite high. This will deter people who carry out building work without consent and then ask council to endorse the development once it is finished. We need to get tough on people who do things like this, and being able to get money back in the process will hopefully deter some of these unscrupulous developers.
The bill is a far-reaching one. I have gone through it in detail. There are some very good clauses and there are some that I believe will prove to be quite successful over time. I have to admit that I am looking forward to the implementation of the bill because despite the fact that I believe it is good legislation, we will not know whether some things are going to hit the fan until the bill is implemented and we see how the process comes together. Whether it hits the fan or not, I suspect it will be quite successful. I hope no more members refer to this Legislation Review Committee report because although it is good it deals with the draft bill and it does not reflect the bill before the House.
Mr MIKE BAIRD
(Manly) [11.39 p.m.]: I join in debate on the Environmental Planning and Assessment Amendment Bill 2008. I state at the outset that I do not pretend to be an expert on planning or planning systems, but I know what my community has told me about this legislation. I acknowledge the contribution of the member for Pittwater, who has significant knowledge and expertise in this area. I commend him for his contribution to debate on this bill. Having reviewed the legislation I have a strong fear that our local community will be sidelined in all future planning decisions, and all communities will be treated very much as one. That is representative of the Manly community, and I am sure it is representative of many other communities.
I view the Manly community as unique and I am sure that all members view their communities as unique areas that should be considered carefully. Some good provisions in this bill will attempt to change the planning process and identify problem areas that require to be changed. However, this bill does not provide solutions to all those problems. Having looked at the legislation I am aware that it increases problems relating to issues such as red tape. The bill will attempt to smooth out development applications and afford closer scrutiny of exempt and complying development applications—something that is long overdue. The Government must smooth out, enhance and streamline exempt and complying development applications but it must not throw out the baby with the bathwater.
Community members have written to me expressing fear about these legislative proposals. I will not read out every letter that I have received but they have said that they fear they will have sun one day and two-storey extensions the next. There is no community consultation and the local community is diminished because people can do whatever they like within the guidelines. One of the shortcomings of this legislation is that the Government has not consulted the community about it. I agree with the sentiments expressed by local mayor, Peter Macdonald, and I have spoken to council seeking its views. Peter Macdonald said that community members were concerned about the Government's move to give more power to private certifiers as they were not accountable and there was a perceived conflict of interest.
Ultimately, the problems that are created by private certifiers end up in council anyway. Clearly, there is a conflict of interest. These people operate independently; there is no election; they are accountable to no-one; and, ultimately, their bills are paid by those who are seeking approvals. I believe that people in that position should not be given more power; rather they should be given less. I refer members to development issues in Wollongong and to public and community perception of a conflict of interest. That is a good example of a distorted process resulting in bad planning outcomes. I agree with the views of my local mayor. If we give powers to private certifiers who oppose this legislation it is open to manipulation and corruption.
There is real community concern about the Government's lack of consultation in relation to this issue. The Government must take into account and focus on the views and concerns expressed by the Local Government Association. It should not be afraid of consultation, even if it takes more time to achieve an outcome that is more aligned with community interest. Legislation creates a whole new layer of bureaucracy. I read from a submission prepared by Manly Council that states:
Many of the proposed reforms would add to the complexity of the system by increasing the number of regulations and regulatory bodies such as the joint planning panels ... planning arbitrators and independent hearing assessment panels ... all of which require administration and funding of their operations.
The legislation makes reference to a whole range of regulatory bodies such as the Planning Assessment Commission, joint regional planning panels, independent hearing and assessment panels, planning arbitrators, review panels, et cetera. Effectively, this new process will duplicate the existing framework, remove significant power from the local community, and centralise power in the Minister. Is that a good thing? Will the Minister for Planning state in reply to debate on this bill who will appoint people to these individual panels? There is no longer a need for the local community to be involved in almost anything under this legislation.
This new process will centralise power in the Minister, no-one will be accountable for these panels, and there will be a huge impost on the community, as ratepayers will clearly have to pick up the costs. The legislation does not make it clear who will be appointed to these panels and the community has expressed concern about the Minister's unfettered power.
ACTING-SPEAKER (Mr Thomas George):
Order! The Minister will have an opportunity to reply to the debate.
Mr MIKE BAIRD:
I look forward to the Minister's response to that issue. Communities are concerned about the Minister's power to establish the panels proposed in this legislation, which will result in reduced accountability and scrutiny and a bypassing of the views of those communities. The shadow Minister said earlier that this legislation should be referred to a parliamentary inquiry. I said at the outset that there were some positive aspects about this legislation but the community has not been consulted on this issue. We must get the balance right. As the legislation stands at the moment we do not have a balance. The Government must consult the community, refer this legislation to a parliamentary committee and allay community concern. Opposition members are concerned about several provisions in this bill. The Government must address those concerns. Manly Council's submission also states:
The Council is of the view the reforms as proposed should be deferred, and a broad round of consultation be undertaken by the Department of Planning with all interested parties.
That is a summation of the feelings of my community. Local communities want power and these legislative provisions must be streamlined. This bill goes only part of the way towards addressing these issues. If this legislation is referred to an upper House parliamentary committee, all our concerns will be addressed.
Mr BARRY COLLIER
(Miranda—Parliamentary Secretary) [11.47 p.m.]: I am pleased to speak in debate on the Environmental Planning and Assessment Amendment Bill 2008 and note that the member for Cronulla read excerpts from the Legislation Review Committee's report on the bill. While the work of the Legislation Review Committee is a valuable contribution to the legislative process, I note that the report includes a number of errors and misconceptions. For example, it is clear that the report was written with respect to the exposure draft of the bill, not the bill that is currently before the House. It refers to the urban renewal acquisition powers that are no longer included in the bill. The report also criticises the Crown development provisions as being "oppressive official powers that appear unduly to trespass on individual rights".
The provisions in the bill are no different from the provisions in the current Act; they merely simplify the dispute resolution process. There is no change in the public participation requirements for Crown development applications. The report also criticises provisions in the bill concerning third party reviews and the safeguards that have been included to ensure that commercial competitors do not abuse those review rights. The relevant commercial competitor provisions are modelled on similar provisions in the Victorian planning legislation—a provision that has been successfully in place for a number of years.
The inclusion of these provisions is an important and necessary safeguard for these types of third party reviews. The report also criticises provisions in the bill limiting people's ability to be legally represented in matters being dealt with by the Planning and Assessment Commission, joint regional planning panels, and planning arbitrators. The Government is unapologetic about these provisions, which are aimed at increasing access and equity in the planning system, ensuring everybody has the ability to seek an independent review of decisions, irrespective of their ability to pay lawyers. These are just a few of the examples of the way in which the report has misunderstood the provisions in the bill and the purpose of the planning reforms.
While I respect the role of the Legislation Review Committee in the legislative process—I do so having been the first chairman of that committee—in my view the significant reforms to the planning system and public benefits introduced by this bill outweigh the concerns expressed by the committee. I am also pleased to speak in support of the complying development certification provisions. I would like to focus on an aspect of the reforms that I believe will have the most positive impact on the everyday person—that is, the move towards more complying development. An increase in complying development will mean faster and more straightforward approvals for simple extensions to the family home, making a currently daunting process less daunting.
The vast majority of development proposals assessed under our planning system are for simple renovations to existing houses or applications for new houses. At present, on average, small-scale residential development applications take 57 days to process, with new single dwellings taking 78 days. In many cases the Government proposes to reduce this to 10 days—and it goes without saying that this would be a vast improvement. It is important to make clear that to qualify for a 10-day approval applicants will need to meet the relevant design code. The codes are being developed in consultation with local government planners and the community, and would be specifically designed to take into account local factors and cover issues such as overshadowing, setbacks, privacy, height and site coverage.
The codes will allow homeowners to avoid a lengthy development assessment for complying proposals. However, if applicants want to do something out of the ordinary that does not comply with the relevant code, they will have to follow the normal development application process. The increase in complying development is quite a significant change. It will give homeowners certainty, which in many cases they currently do not have, about the rules that apply to their property and neighbouring properties. Quite a lot of misinformation has been bandied around about this aspect of the reforms, especially that we need new legislation to increase complying development. That simply is not true. The bill does not include any provisions to increase complying development: that can be achieved already under current legislation. However, the bill does include provisions to tighten up the regulation of private certification.
Unlike what the Local Government and Shires Associations have been sprouting, the bill does not broaden the role of accredited certifiers. Currently, either the local council or an accredited certifier can issue a complying development certificate; it is not proposed to change that arrangement. The bill actually introduces tougher rules and penalties for accredited certifiers. The bill strengthens and clarifies the certifier's role in preparation for an increase in faster approvals for mums and dads. The accredited certification system came into force back in 1998. It was a good reform that provided greater choice for persons seeking sign-off for building subdivision and minor works. The current certification system is fast and efficient and ensures buildings are assessed against the building code. However, we must ensure community confidence in how certifiers operate, especially in light of plans to increase complying development.
The bill addresses serious current existing concerns about certification, such as possible conflicts of interest. For example, the bill contains much tougher rules and penalties for certifiers, including restricting them from earning more than 20 per cent of their income from one person or company. In addition, the bill gives the Building Professionals Board the power to cancel a certifier's certificate of accreditation. The planning reform package does not contain radical changes. As mentioned, we already have complying development and we are developing various housing codes separate from the legislation. However, the reforms will lead to vast improvements for the everyday person who uses the planning system the most. Obviously, the need for planning reform is well established. The Government has consulted widely in putting together the package. It has examined systems from other States, it has held forums, presented a discussion paper, and an exposure bill has been published for comment.
I am advised that of the 126 major recommendations in the discussion paper entitled "Improving the NSW Planning System" councils generally supported 71 per cent. The package before the House is backed by a broad alliance of stakeholder groups, including those representing practitioners such as the Planning Institute of Australia and the Royal Institute of Architects. Of course, Sutherland Shire Council has been conducting a misleading campaign at great expense to its ratepayers, including me. Its campaign is that this legislation actually will undermine it and take away its powers. The council has been stinging its ratepayers and spending funds that could be used for infrastructure on its misleading Keep it Local campaign. In reality, joint regional planning panels will consider only a few hundred determinations each year. It is anticipated that when the reforms are up and running the local council will continue to determine about 97 per cent of all development applications in New South Wales.
If we take off the blinkers and look closely at the legislation, we see that there are a number of wins for councils. For example, the existing planning process of course is too complex and time consuming, but the figures show that local minor environmental amendments can take an average 196 days while a major local environmental plan can take an average of almost five years. Again Sutherland Shire Council is a case in point. We are moving also to tailor the plan-making process to the scale and size of a proposed plan. Of course, councils have been giving misleading information by bandying about that without contributions they will not be able to provide things such as playgrounds, green space and even childcare centres. Nothing could be further from the truth. Certainly, one of the most important areas in reforming the Act is the section pertaining to contributions. That section evolved over the years on an ad hoc basis, and it has become confusing, and unnecessarily complicated. I support the Minister for Planning in his moves to create a more simple and accountable contributions framework that takes into account affordability as well as making sure councils deliver infrastructure for their community and not just a wish list.
Again, as I have said, Sutherland council has been running a misleading, misinformed and very costly campaign against the new contributions provisions. The council is saying it will not be able to provide parks, childcare centres, green space or the like: "We have $57 million sitting in funds. We can't use those. We can invest in the sub prime mortgage market and so on in the United States, but we can't use those funds for infrastructure." The Minister has investigated all of the council's contributions plans and the results are telling. While the majority of councils take a sensible approach to contributions, some are rorting the system by approaching the contributions levy as an uncapped backdoor tax. Of course, that approach must be stopped. I note that the Minister in his agreement in principle speech stated that under the current provisions of the planning legislation local development contributions vary widely between councils and often for no clear reason.
For example, in metropolitan Sydney contributions vary from $57,000 per lot to nothing. In addition, no clear definition exists of the kinds of infrastructure that contributions could fund. Some councils use contributions to fund things such as changes to their administration buildings and even computer upgrades. Some also are retaining funds and not spending an increasing amount of levied money—that is, they are not delivering facilities for their community. The bill is a step in the right direction by establishing a new part of the Act for developer contributions and placing renewed emphasis on three principles: delivering infrastructure, maintaining affordability and restoring accountability. The bill supports local communities by recommitting local councils and State agencies to providing infrastructure to meet the real needs of new residents.
The bill sets out for the first time key considerations for determining, collecting and spending contributions. It established a two-tier system for local council contributions, which provides flexibility for councils. Contrary to the misleading scare campaign of the Sutherland Shire Council, councils already can levy for community infrastructure without approval. The list of key community infrastructure is set out in the bill and includes land, works and buildings. It includes drainage and water management works; local roads; bus stops; sporting, recreational, cultural and social facilities; parks; and car parking. It includes also district facilities that have a direct connection with the development the subject of the contribution—the list is broad.
Accusations by Sutherland Shire Council that the reforms will stop councils providing services simply are not true. However, the bill makes councils accountable, and that is a good thing for the community. In addition, councils can seek contributions also for other community infrastructure if they can demonstrate that a legislative case exists for extra contributions, prepare a business plan, obtain an independent assessment of the proposal and address the key considerations I have outlined. It will need the approval of the Minister. Unfortunately, Sutherland council seems intent on squirreling away its section 94 funds by focusing on buying land when owners sell their property or pass away.
The families of the Sutherland shire need services and facilities now, not at some indeterminate future time. The member for Cronulla in his contribution to this debate said that the people of the Sutherland shire want parklands, green spaces and playgrounds. He said that these are all part of any civilised society. For once I agree with the member for Cronulla. We want those things, but we want them now, not in 50 or 60 years. We do not want councils sitting on millions of dollars for donkey's years or investing overseas in subprime mortgage markets and the like. We want these things now. I asked two Sutherland councillors what council spends its contributions on. They said green space and blocks of land that people have: when they pass away no doubt they will have to bequeath them to the council or have to sell them to the council if they move. I am pleased that the bill retains key provisions of the existing legislation to ensure that councils continue to obtain the full range of community infrastructure and the full range of public amenities and public services, subject to new accountability requirements outlined by the Minister.
The bill will improve reporting on the collection and spending of development contributions, and provides for the application of new vigour to the delivery of infrastructure. The legislation will require timeframes for delivery to be met for each infrastructure item. However, when councils are not delivering infrastructure for communities the council will be able to be directed, as a last resort, to use unspent contributions to provide infrastructure to new and existing communities within reasonable time frames. I ask the Sutherland Shire Council to please take note of that.
The Environmental Planning and Assessment Amendment Bill 2008 provides much-needed reforms to planning laws in New South Wales. It has often been argued that we are removing lawyers from the process, but that contention does not stand up to scrutiny. The Government is not changing the status quo by introducing this legislation but is simply allowing lawyers and planning advocates to create a new industry and new bodies. It may well be that some members of panels or arbitrators are lawyers, but that is a matter for the selection process. I commend the Minister for Planning on the Environmental Planning and Assessment Amendment Bill 2008, which I commend to the House.
Mr JOHN WILLIAMS (Murray-Darling) [12.01 a.m.]: I oppose the Environmental Planning and Assessment Bill 2008 principally because the shires in the electorate I represent have no confidence in the Department of Planning and the Minister the Planning, and do not understand the policy direction of the legislation. The Minister says that one size does not fit all, but the Balranald and Hay shire councils want to know how new planning policies will apply to them. The Government should provide much more explanation of the implications of the legislation so that shires in my electorate will be able to understand what their position will be.
The Minister for Planning should recognise that he is working within the local government sector and that he needs to engender confidence among local government authorities. At present local councils do not have any confidence in planning edicts of the Government. I am sure that if a censure motion were moved tomorrow at the shires association conference against the Minister for Planning, the Minister would not be able to count on support of the shires. The Minister for Planning should recognise that he must articulate the implications of the changes provided in the legislation to give shires some confidence in their capacity to work within the proposed legislative framework. Currently there is no trust between the State Minister for Planning and local government authorities.
The history of local environment plans [LEPs] in shires in my electorate began with the introduction of a local environment plan. Subsequently adjustments were made in conformity with the plan. No sooner had the plan been implemented than a series of changes had to be accommodated. The shires employed people to work on the local environment plan and invested a great deal of money in its implementation. However, somewhere along the line the Department of Planning decided to reverse the local environment plan and switch to another process. That bad experience created a feeling among shire councils of no confidence in any changes that the Minister for Planning may wish to introduce.
There are practical difficulties associated with the legislation. For example, how will the Hay Shire Council be able to convene a planning panel? Where will the Hay Shire Council obtain appropriately qualified people to appoint to a planning panel? Who will remunerate members of the panel? The costs of the planning panel will fall onto the shoulders of the ratepayers of the Hay shire, but the reality is that the resources for a planning panel simply do not exist in the shires of my electorate. I challenge the Minister to outline how he will support the implementation of this legislation in the real world of remote western areas of New South Wales.
Clearly, the Minister for Planning has not provided any support for councils and planning panels to work together under a centralised system of planning management. Currently there is complete distrust of the Minister. Many shires believe that the Minister wants to control all of the New South Wales planning powers by removing planning authorisation from local councils and cutting them adrift. In contrast to the situation that exists in New South Wales currently, the New Zealand model works on trust between local government and the national government. New Zealand local government authorities manage their own planning and get on with the job. They do not have to be put up with an overarching organisation that is being run by a megalomaniac. Local shire councils in New Zealand make decisions and conduct audits. Local council planning departments examine the way in which councils organise planning and they provide some direction. Unfortunately, local councils in this State are caught in a vice and there is no flexibility. The Government issues edicts to local authorities, saying, "We will give you the determinants and you will work within those."
In my view the Minister has some responsibility to the shires of my electorate to clearly articulate the impact of changes introduced by this legislation. Shires in my electorate are entitled to have the same confidence about the changes as that enjoyed by the Minister. The Minister contends that all the changes provided in the bill will work, but the general feeling is that local government administration in New South Wales is falling apart at the seams. The principal Act has had bits and pieces tacked onto it. Shires will be thrown to the wolves. The Government's attitude is that it will make all the changes, dictate the policy direction, and the mess can be cleaned up later.
Local councils view this legislation as an imposition of change and a situation with which they are being forced to contend. Ultimately local councils will bear the brunt of this legislation. One of the most obvious difficulties is demonstrated by what occurs currently in my electorate. The Department of Planning office for the Southern Riverina area, to which shire council officers in my electorate refer, is based in Queanbeyan and currently is understaffed. Whenever shire council officers refer to planning officers in Queanbeyan they have to discuss the issues with a succession of different planning officers. There is no continuity of control, and that is a clear indication that the department is underresourced. I do not believe that the Minister has sufficient resources to make decisions on behalf of shire councils; nor do I believe that he has the capacity to make planning decisions that are based on good sound thinking rather than on the basis of rush and tear.
As members in the Chamber can see, the Minister wants to go home. He is in a hurry and will ram through this legislation, and that is typical. If he applies that same approach to approvals that come before him, I do not believe that the legislation will work. The questions I have raised must be answered. The Minister has a responsibility to the local government sector because the changes introduced by the legislation will impact mostly on them. I urge the Minister to promote confidence among local councils by explaining how the legislation will work. The Minister should explain the details of the legislation to officials from the Balranald, Hay, Wakool and Wentworth shires as well as officials from other shires in remote areas of New South Wales. He should tell them how the hell the changes in the legislation will work for them.
Mrs DAWN FARDELL
(Dubbo) [12.08 a.m.]: My remarks will be directed to the Environmental Planning and Assessment Amendment Bill 2008. Intense lobbying has been carried out by the Local Government Association: I am sure all members have been approached. I arranged to have a meeting with the Minister and he agreed. That was before Easter. Although there was lobbying for the Keep it Local campaign, the majority of councils of my electorate did not fully support the campaign and agreed with some of the amending provisions of the bill before the House. Repeatedly I asked them to express their concerns about the bill. Since then I have spoken to the Minister
The local government association considered that the three-week consultation period, from 3 April to 24 April, was too short to allow for meaningful review of the legislation and submissions to be prepared. The local government association felt that rather than take a short cut, the Government should engage in proper consultation with local government and stakeholders in the community. As I said, as a result I contacted the Minister and met with him and his staff to discuss concerns raised by Forbes Shire Council, Parkes Shire Council and Dubbo City Council. Upon request, these local government bodies forwarded notes that were discussed. I thank the Minister for the follow-up meeting held that same week—on 24 April—and council planning staff representing those various areas and other areas in New South Wales.
The Local Government Association acknowledged that the draft exposure bills differed in only a few respects from the recommendations in the discussion paper released in November 2007. However, they believed that submissions on this paper had not been properly considered in the drafting of the exposure bills. The association's key concerns relate to community rights, the overall reduction of the role of councils and the community in the planning process, probity, greater corruption risk due to the expanded role of appointed panels, the introduction of planning arbitrators, increased costs borne by councils and their communities due to changes in the development contributions framework, and costs associated with supporting regional panels and arbitrators. The association agreed that the bill has a number of positive provisions, such as the establishment of a planning assessment commission, improvements to plan making, and the creation of the gateway test, which may have practical merit.
The preliminary assessment undertaken by the Local Government Association of the draft legislation focused on decision-making processes, reviews and appeals, development contributions, certification and extension of exempt and complying development, plan making and heritage. Dubbo City Council and the association generally supported the provisions dealing with decision-making powers and had the general support of the Local Government Association. No concerns were expressed about them in my electorate. However, the association opposes the establishment of joint regional planning panels as an unnecessary duplication of existing government and judicial bodies. This measure will add costs and time to the development assessment process.
Dubbo City Council is also concerned about funding, additional costs and resourcing with respect to the provision of up to two council nominees for what could be an extended period. It is also concerned about who defends the ultimate decision of any joint regional planning panel in legal disputes. At the meeting with council and shire staff, the Minister indicated that development application fees should cover the burden and that he may increase fees, if necessary, to ensure that. The Parkes Shire Council advised me that the Minister indicated he was willing to review the fees to cover excessive costs that may be incurred. However, this would need to be assessed once the process had been implemented. It is anticipated that council nominees will be on the panel to deal only with their own council developments, not developments relating to other council areas. It would be a council's responsibility to defend the ultimate decision of any joint regional planning panel in a legal dispute.
Forbes Shire Council also questioned the costs and responsibilities for the establishment and operation of the joint regional planning panel and asked for clarification of the panel's jurisdiction. Where panels are established to deal with a project of regional significance, it is imperative that rural communities be reasonably represented. To this end, consideration of the panel's structure and skills sets is required as part of finalising any legislative reforms. The Forbes Shire Council says that the reforms indicate that members of the panel will be remunerated for their participation on the various panels. It is noted that councils are responsible for providing staff, resources and facilities for the various panels. Councils are also concerned that section 123N makes it an offence for council staff or the general manager to fail to provide assistance to the panels despite potential resource limitations at the time.
The Local Government Association deemed the independent hearing assessment panel model to be unnecessary. Dubbo City Council felt that the referral of development applications to an independent hearing assessment panel constitutes an additional step that will slow down and complicate the development process. The establishment of an independent hearing assessment panel would have significant resourcing implementations for Dubbo City Council, including consuming staff resources to establish and manage the panel and the expenditure of additional funds to cover panel members' fees. Referral of relevant development application reviews to an arbitrator also constitutes an additional step that will slow down and complicate the assessment process. It will add to councils' costs and encourage frivolous claims. Forbes Shire Council is also concerned about the indemnity that would apply to the planning arbitrators who, having made a determination on behalf of a council, are not required to defend such a decision in the Land and Environment Court.
They were the concerns raised by council representatives at the meeting with the Minister. Following the meeting they indicated that the system is aimed at moving away from the current adversarial approach to resolving disputes. The councils are concerned that appropriate fees will cover the financial burden when the applicant applies for a review. Parkes Shire Council noted following the meeting that the system is designed to combat the existing delays where councils are sitting on development applications and not processing within time frames. That may be due to inadequate skills in this area.
Councils also advised of the need to keep matters out of the court where issues are merit considerations, not legal technicalities. It allows appropriately qualified people to consider the matters. It is anticipated that the Department of Planning will produce a list of people from which an arbitrator can be chosen. This could even be a mayor or an adjoining council mayor if the person has the appropriate skills. The Local Government Association believes that the New South Wales system involves a complex set of arrangements for review and appeals and it opposes the proposed system because it is unnecessarily costly and open to corruption.
The Local Government Association welcomes the State Government's concession on councils being able to levy contributions to pay part of the costs of upgrading or building district- or council-wide facilities. However, the wording of the bill and the lack of detail about the type of projects that may be funded are of concern. The association is opposed to wide-ranging powers, Treasury control and lack of formal mechanisms. Local government authorities in my electorate have not raised this issue. For example, Forbes Shire Council's average section 94 contribution is $1,000. It is understood that four to six council growth areas in New South Wales will be affected. Parkes Shire Council states:
Western regional councils were not involved in this discussion because it was not a particular concern to our representatives.
With regard to private certification, Dubbo City Council and Forbes Shire Council are subject to exclusion zones such as flood-prone land, heritage items and character conservation areas. At this stage they are unaware of any detail. However, they are concerned about private certifiers being able to make such qualitative judgement calls and to issue a complying development certificate in those circumstances.
Forbes Shire Council said that enabling accredited certifiers to vary these standards at a whim makes a farce of the whole process of community consultation in development of the localised future planning controls. Dubbo City Council believes that the proposed changes will allow complying development certificates to be issued as a minor non-compliance with development standards. It is concerned that council's resources will again be taxed and that the proposal ignores the concept of a complying development, which is to provide certainty for developers and the community with regard to minor developments. The Local Government Association opposed this measure.
Parkes Shire Council advised following the 24 April meeting with the Minister that this defeated the purpose of complying development because valuable council staff time would be diverted to minor developments and the proposed time frames would be difficult to comply with when council was dealing with other developments and activities. The majority of representatives at the meeting agreed that a development is either complying or not.
Dubbo City Council advised that planning reforms are generally supported as being a positive step forward. The Local Government Association recommended that draft State environment planning policy proposals should be publicised and submissions received. Forbes Shire Council advised me that the proposed reforms to streamline and simplify the process for making local environment plans are supported. Hopefully, they will alleviate the frustration of delays.
Dubbo City Council has expressed serious concern about the Building Professionals Amendment Bill and the new restrictions and requirements imposed on council certifiers. Proposed section 66B will limit the number of development certificates that a building surveyor employed by councils can issue on behalf of a particular person. Forbes Shire Council is concerned that the proposed amendments to schedule 1 of the Building Professionals Regulation 2007 will include three new categories of individual accreditation to apply to those staff employed by councils to carry out certification work on behalf of council. A council staff member will be able to undertake any mandatory inspection of, for example, footings or a slab for a garage, only if that staff member has a minimum CA3 accreditation.
To achieve that accreditation a certifier must have 12 months of relevant experience and an ordinance 4 certificate, A1BS national accreditation, BSAP accreditation or an associate diploma in building surveying. Due to the diversity of workloads of health and building surveyors in rural areas that was an acceptable option for councils, which in turn supported and developed the competency of these employees via mentoring and provision of additional training. If the regulation is implemented it will make it very difficult for young people to train to carry out this work. Councils are encouraged to employee trainees and the proposal will result in trainees being unable to undertake even the most basic inspections unless under the direct supervision of a council certifier. Dubbo City Council expressed similar concerns.
Parkes Shire Council also raised these issues at the 24 April meeting with the Minister. Questions were asked about whether the accreditation should proceed in its current form. A large proportion of existing experienced building surveyors carrying out certification work in the Central West would not achieve accreditation.
I have been advised that the Minister indicated at the meeting with Parkes, Forbes, Dubbo and other councils that this cannot be permitted to occur. They were told that existing qualifications that have adequately allowed persons to carry out certification work for councils should be incorporated in the regulation, and staff were advised to address the western council areas' concerns through a more thorough discussion at the end of the meeting. This was a major issue for shires and councils in my electorate. I believe it has been addressed and the general manager will be able to decide who is qualified to carry out inspections. We must not put at risk young people who are training in jobs.
While Forbes Shire Council appreciates the benefit of using new technology to streamline processes such as those relating to development applications and section 149 certificates, the associated cost burden to the council is an important consideration. The time frames and accountability expectation proposed must be realistic within the context of organisational realities. Officers from the Department of Planning have had many meetings in Parkes, and I appreciate their time and that of the Minister. The shires raised with me six major issues regarding the bill. I believe those concerns have been addressed to the satisfaction of local government in my electorate.
Individuals and local professionals have not lobbied me about the bill, apart from the memos that all members have received. I note that the Local Government Association and others have requested an upper House inquiry. This State does not need another inquiry; members must decide whether to support the bill. On 23 April 2008 an article entitled "Centroc mayors support new direction for State Planning" appeared in the Canowindra News
. It read:
Mayors from around the Centroc region met in Orange today to hear a presentation on the draft State Environmental Planning Policy (SEPP) for rural lands by Gerard Martin, MP State member for Bathurst, representing the Minister for Planning the Hon. Frank Sartor.
Mayors spoke very positively about the presentation
"This has resulted in far superior planning for Central NSW. This new direction provided has been needed for a long time," said Cr Neville Castle Chair of Centroc and Mayor of Lithgow Cr Maurice Simpson, Mayor of Weddin welcomed the State's announcements.
The member for Burrinjuck earlier quoted a different response from him, but people change their minds. Councillor Simpson was quoted as saying:
"The fact that they are willing to listen is a very good thing. We have been involved in this process from the start and now it is up to us to make the new system work"
Cr Ann Jones of Wellington was particularly pleased with the transition arrangements enabling people with existing development approvals to retain them.
"I think it is also important to get the message out to people considering putting in Development Applications under existing laws to move now, as this new legislation will be gazetted very soon," said Cr Jones.
"Hearing that Minister Sartor is keen for feedback and has appreciated the role the Centroc Mayors have taken to date on the reference panel developing the statewide planning policy is also heartening, " said Cr Castle.
"Centroc will remain in contact with the Minister to ensure the best outcomes for our region," said Cr Castle.
The bill is controversial, and deciding whether to support it was a matter of conscience for me. However, there have been good meetings between the Minister, the Department of Planning and the shires in my electorate. Some concerns remain but the majority of major concerns have been addressed. As a consequence I will support the bill.
Mr MICHAEL RICHARDSON
(Castle Hill) [12.22 a.m.]: The Environmental Planning and Assessment Amendment Bill 2008 is a major overhaul of the State's planning laws. It is 153 pages long and I suspect that even the Minister for Planning is not across all the detail in the bill. The bill is like the curate's egg: it is good in parts. Unfortunately, on balance, it is bad in more parts than it is good. Therefore, I will not support the bill. The Minister claims that a major feature of the bill is that it will reduce the time taken to process development applications and reduce the possibility of corruption in the process. The reason the Minister is introducing legislation to reduce the possibility of corruption is the disgraceful state of affairs that was exposed recently at Wollongong City Council, which is now a synonym for corruption. Therefore, I guess any changes in that area will be well received. The bill will also give mums and dads the opportunity to have a decision reviewed without having to spend $20,000 in the Land and Environment Court. That is a step in the right direction.
I note the Minister's comments in his agreement in principle speech that only 11 per cent of development applications are dealt with as complying development in this State compared with more than 50 per cent in Victoria. I suspect that is more a function of the Government's failure to drive its previous reforms at a local level than any failing in the legislation that this place passed 11 years ago. As Harvey Grennan wrote in the Sydney Morning Herald
on 8 April:
The last time the planning laws in NSW were "simplified" in 1997 the delays in processing development applications got a lot worse.
That was despite the claim at the time that the process would be streamlined. So why should we have any confidence that the new reforms will work? The proposal is to have far more matters dealt with as complying development by private certifiers.
Mr Frank Sartor:
That is a good idea, isn't it?
Mr MICHAEL RICHARDSON:
The Minister believes this will bring approval times down to as little as 10 days. The Minister believes it is a good idea, but that is exactly what one of his predecessors, Craig Knowles, claimed in 1997. It just has not happened. Gone is the requirement to notify neighbours of a development application in advance of its approval. That will supposedly save time, but the Government is removing people's rights and trampling over the community in order to fast track development applications. Henceforth, next-door neighbours will be notified after approval is granted and before construction begins, but only as a courtesy measure. It is too bad if the private certifier gets it wrong. As Councillor Genia McCaffery, President of the Local Government Association, said, "It's too late when your view or your sunshine has gone." It may streamline development approval but at what cost to neighbourhoods?
The bill also sets up a massive new system of mini bureaucracies: independent hearing and assessment panels, joint regional planning panels, planning arbitrators, and a new Planning Assessment Commission. And this is supposed to reduce the time taken to process development applications! The Government is going to produce a series of preset housing codes and, if the development complies, it will be approved. The Minister outlined what those codes will cover in a policy statement that he tabled when he gave his agreement in principle speech. There will be 20 codes in all, covering single-storey, two-storey and terrace houses, duplexes, small new commercial and industrial buildings, industrial, retail and commercial change of use and internal alterations to a commercial building. This area of the legislation is probably the most contentious part of the package. Many people are concerned that there will be a one-size-fits-all approach to the codes. That fear is given some weight by the Minister's "NSW Housing Code Community Guide", which states:
In some instances local variation within a Local Government Area may be appropriate for street setbacks or side setbacks due to large blocks greater than 600m2
There will be potential for variations within the code standards but the number of variations should be kept to a minimum.
Perhaps it will not be a case of one size fits all, but it will certainly be a case of a minimum number of sizes fits all. Another great fear is that the Government may move to include on the list medium- and high-density developments such as townhouses and blocks of flats. So the entire character of a street or a suburb could be changed with no opportunity for input from residents. I seek an assurance from the Minister that no consideration is being given to classifying other types of development as complying development. Indeed, I wonder what safeguards have been, or can be, built into the legislation to ensure that this cannot happen in the future.
That concern is given greater weight by the bill's creation of joint regional planning panels to determine the following classes of development to be specified in a State environmental planning policy: designated development, Crown development and private infrastructure greater than $5 million; commercial development over $20 million; residential development over $50 million; and development where council is the proponent or has a significant financial interest in the proposal. Three of the five panel members will be appointed by the Minister and two by the relevant council. Many sections of the community believe this process will take the democracy out of the planning process. Certainly, the $500 million extension of Castle Towers shopping centre in my electorate—which is much more than $20 million—would be determined by a regional planning panel rather than by Baulkham Hills Shire Council. This could mean that conditions of consent that benefit the local community, such as a contribution to widening Showground Road, for example—which we were looking for in today's budget but did not find because it is not there—are ignored.
The panels could presumably also consider a major new subdivision and decide that the block sizes should be 300 square metres, even if that is totally incompatible with the local area. And there is not a thing that the local community could do about it. The Minister has the numbers on the committee—he appoints three of the five members. Indeed, he appoints the members and has the numbers on all the new bodies. The panels are supposed to be independent but one wonders just how independent they will be—certainly under this Minister.
On the other hand, the panel would consider council-funded developments, and that potentially is a good thing because I happen to think that councils should not be in the development business. But they should also act independently of the Minister. It always gets back to the same issue. The Minister said the regulation would be changed to require a council to provide reasons justifying a decision made contrary to advice from council's planners. I am not quite sure where this leads us. Every council across the State makes decisions for political reasons, but those political reasons may well accord with the local community's wishes. I can think of a number of cases in my electorate in relation to which the community did not want development to go ahead and the council voted with the community. This provision will make it more difficult for councils to reject development that they think is inappropriate.
On the plus side, the bill is like the curate's egg: it is good in parts. There are new appeal mechanisms, one of which will be the appointment of planning arbitrators so there will be no need for families and small businesses, as I said earlier, to go to the Land and Environment Court to dispute a council decision. Minor developments such as for single homes, dual occupancies and home additions can be arbitrated. That is a positive move for small developers, mums and dads. There will also be a process of neighbourhood reviews. Where standards have been exceeded by more than 25 per cent, a review can be undertaken by a regional panel, or the new Planning Assessment Commission where no regional panel exists. The concern here is that those standards should not have been exceeded by more than 25 per cent. If a code is drawn up and put in place it should be adhered to. Neighbourhood reviews would apply to homes of more than two storeys, the development of five or more homes on a 2,000 square metre-plus site, and certain types of commercial and retail development.
Controversially, the bill also changes the system of section 94 development contributions. I can remember, not so long ago, when developers were lobbying me over what they regarded as totally unreasonable section 94 charges in the Rouse Hill development area of $15,000 a block. They are paying more than three times that now, and that, of course, significantly increases the cost of a block of land. No wonder people are fleeing to Queensland. Under this bill most councils will hold and manage their own community contributions. This will not apply to Sydney's north-west and south-west growth centres. Moneys collected in the Rouse Hill development area—now known as the north-west growth centre—will go into a Community Infrastructure Trust Fund managed by Treasury and the Growth Centres Commission. The Minister said that without this fund any of the six councils in growth centres could use contributions from the growth centres to prioritise the delivery of community infrastructure in their own areas outside the growth centres. Frankly, I cannot see how that could happen. Certainly under the existing system councils must develop a section 94 plan for a particular area, and only levies collected within that area can be spent in that area. Consequently, Baulkham Hills Shire Council could not collect funds in Kellyville and use them to build a new swimming pool in Carlingford or a tennis centre in Castle Hill.
Mr Frank Sartor:
Yes it could.
Mr MICHAEL RICHARDSON:
No, it cannot. Currently it has to be in the section 94 plan. It has to collect funds from that area and apply them in the area to which the section 94 plan applies. I would have thought that priorities for the delivery of community infrastructure are what it was all about. That is not the case for this Government, as we have seen with the sad case of the North West Rail Link, but it is certainly the case for councils. The Government has said that levies can be spent only on facilities that directly serve a new community, not on facilities for existing residents. Genia McCaffrey says that it would be impossible to prove that money spent on services for new residents would not also benefit existing residents. It is more likely that under the new system money would be collected in Kellyville and used in Camden, so the Hills community will suffer again.
The member for Hawkesbury raised that issue earlier in debate. Baulkham Hills Shire Council would be forced to spend money it has not collected to acquire open space, for example, with everyone in Baulkham Hills shire—and not just those in the new release areas—being forced to contribute. The bill gives councils greater powers to enforce development consents and to issue stop work orders to stop unauthorised work. Councils can also grill certifiers about a development. These positive steps should result in a greater level of compliance with development consents in the future.
Mr Frank Sartor:
Mr MICHAEL RICHARDSON:
I said it is like the curate's egg: it is good in parts. However, I have considerable concern about a provision that allows for a consent to lapse just two years after the consent was issued unless development has substantially commenced.
Mr Frank Sartor:
No, that is after physical commencement. You have misunderstood it.
Mr MICHAEL RICHARDSON:
The definition of "substantially commenced" is to be included in a regulation. Preparing a development application can cost tens of thousands of dollars, and a home builder might defer the start of construction because of higher interest rates, for example—something that is beyond his control. So, there is a legitimate reason for not starting, and that could affect the very people the Minister claims to be assisting—mums and dads. The Minister did not spell out why that change is necessary or, indeed, why it is being reduced from five years to two years. Why not three years or four years?
The bill also makes consequential amendments to the system of accrediting certifiers, including limiting the amount of income a certifier can make any year from the same person or company. Of course, that is designed to reduce the cosy relationship that could be created between a developer and certifier. The Strata Management Act has been amended to allow a single owner in a strata scheme to notify the Office of Fair Trading of a building dispute in relation to common property. I hope this will not lead to unnecessary disputation. The Office of Fair Trading seems manifestly unable to manage the building industry currently. I wonder how many more inspectors will need to be employed because of this provision.
I have said that the bill is good in parts. On the plus side, the development and building industries are crying out for reform of the planning system, because money is going interstate, and we want economic growth in this State. The bill is likely to reduce the chances of a recurrence of what took placed in Wollongong recently by determining at arm's-length, through a regional planning panel, development applications in which councils have an interest. If the bill succeeds in cutting development approval times, investment in this State will be stimulated.
On the minus side, there will be a massive increase in new bureaucracies, all appointed by the Minister. There is absolutely no guarantee that the new system will cut approval times. Indeed, based on experience, that is unlikely to occur. The bill will remove the community from the approval process, and this will disadvantage Baulkham Hills Shire Council and other councils in Sydney's growth areas. We are asked yet again—and this is a major issue—to take the Minister and the Government on trust, with much of the detail contained in codes and regulations and guidelines yet to be published. For that reason the Opposition believes that this bill should be referred for inquiry to a committee of the upper House. We would prefer to get it right this time. The many changes to the Environmental Planning and Assessment Act over the years of this Government have not necessarily resulted in improvements. This time, let us do it properly and get it right.
Mr GREG PIPER
(Lake Macquarie) [12.37 a.m.]: In speaking to the Environmental Planning and Assessment Amendment Bill 2008, I say that clearly there is wide agreement that the current planning framework and legislation in New South Wales is in need of reform. I support that proposition but cannot support the bill in its present form. To begin with, it is very likely that a bill that is really an amendment to previous amendments will produce a much less than optimum outcome. New South Wales and the community of New South Wales deserve a complete review of planning legislation from the ground up. The bill will not deliver in that respect.
I will commence my contribution by referring to matters with which I agree. I found the Minister and his department very accommodating in providing information about the proposed bill and in listening to complaints or suggestions that staff from Lake Macquarie City Council and I have made. Unfortunately, my main area of concern relates to what I believe should be the absolute right of elected representatives to make decisions that will affect their local communities. Many of the most significant changes proposed by this bill are contrary to that belief and I believe set a bad precedent for the future. I support the greater use of complying development and I support measures that will increase overall efficiency of development assessment so that there is some certainty for the time frames for a determination. Many councils have already greatly increased their use.
I have concerns about the removal of the notification. At the same time I acknowledge that people who will be carrying out a development that, in its general context, is relatively modest, should have some guarantee that it will proceed if it fits within certain constraints—setbacks, heights, et cetera. However, the simple courtesy of notification pre-determination, I believe, would reduce friction within the community in the future. The need for all parties to act fairly and in a businesslike manner is a given, and I believe the vast majority of councils do just that. Lake Macquarie City Council has attempted to embrace greater complying development but has the problem that some 90 per cent of its zoned residential areas are affected by mine subsidence, thus removing the opportunity for complying development to the degree sought by the Government. This bill will not address this problem.
Other provisions that I support include those that address paper subdivisions, reform of strata management and an attempt to introduce affordable arbitration, amongst others. I do, however, have doubt about the workability of an arbitration that is capped at a relatively low level, begging the question as to where people with the skills and qualifications willing to resolve difficult neighbour disputes, for example, will come from. That will bear some watching. Private certification has created many problems local communities and councils since its inception. It would be fair to say, however, that the majority in the industry act properly, and I acknowledge that the bill imposes additional responsibility on the industry and proposes significant oversight of it.
Since the Government seeks to ease the burden of red tape on developers, whether mums and dads or multinationals, it is at least pleasing to note this bill proposes a reduction in State agency concurrences. Whether concurrences or the time frames for responses should be reduced, this component goes to the heart of the problems that many councils have had for years in having to deal with an ever-growing raft of State legislation, which has greatly increased the complexity and cost for councils assessing proposals—all without any additional resources. During the process there have been some changes, including the removal of the ability for private certifiers to determine that a departure from the code is a minor non-compliance. Also, the requirement for compulsory acquisitions for the purpose of urban renewal has been removed. Those changes are absolutely appropriate.
Community infrastructure derived through section 94 and voluntary planning agreements has been the subject of considerable debate and concern from local government. But let us not forget the kind of inflammatory and generalised statements that were made by the Premier and the Treasurer, in particular, in relation to that—accusations of local government using section 94 as an uncapped tax and using the funds to pay for a range of inappropriate purposes. I note that some were referred to again in this debate, including spending on administration buildings, cat and dog compounds and computer upgrades. While such examples of inappropriate spending exist, they are very much the exception and do not in themselves justify these changes.
While I hear from supporters of the bill that local government is overstating its concern on changes to section 94, I am not so sure. It will be interesting to see whether communities experience difficulties in gaining approval for section 94 plans that do not meet the strict definitions within the bill and that are contested by development proponents. Section 94 does need changing, but the simplistic notion that has been put forward that the changes will see the reduced costs to developers passed on in lower land prices is not universally accepted, even by those in the development industry. They will not, however, look this gift horse in the mouth!
The most objectionable part of the bill is that which seeks to diminish local democracy in the determination of development proposals. The notion that there can be or even should be a depoliticisation of the proposal is absurd, as absurd as suggesting that an independent panel be established to make decisions on behalf of the Government. In most development application assessments some components are arguable and require a person to exercise judgement. Those components cannot be measured, run through a template and ticked off—they are by their very nature subjective.
It is a shame that politics has become a dirty word in this argument. Politics, as I know it, is about representing the local community, and this can be best done by those chosen by the community and who are answerable to the community through the electoral process. Of course we have compelling statistics that show that in the scheme of things very few development applications will be determined by either the new Planning Assessment Commission or by joint regional planning panels.
Mr Frank Sartor:
That is right.
Mr GREG PIPER:
I agree with the Minister, but that does not justify the removal of consent powers from the local council or the creation of any other unelected, unrepresentative and unanswerable body to make decisions on matters that will affect a community. The transfer of such power through this bill will I fear be the thin edge of the wedge, with the wedge being ever driven further by industry groups opposed to local government determinations. This is already demonstrated by the reduced threshold for commercial and retail development from $50 million to $20 million as sought by industry. I understand that it wanted a much greater reduction, and I have no doubt that further attacks on local decision-making will occur if this bill is passed in its current form. In supporting the bill, Patricia Forsythe, from the Sydney Chamber of Commerce, said that "the community can't afford to have a planning system at risk from corruption and political interference". Well, I am sorry, but I believe that the removal of elected representatives will only add to the ability of unseen forces to influence planning decisions.
Joint regional planning panels consisting of five members, three of whom are appointed by the Minister, with the other two members coming from local government, hardly guarantees that decisions will be kept local and accountable. Does anyone seriously suggest that a locally elected representative would want to sit on a panel that is responsible for decisions that may be against the wishes of their local community and their council? Depoliticisation? I do not think so. The Minister has attacked the inconsistency of local government's argument in relation to joint regional planning panels and the proposed Planning Assessment Commission—that is, they do not support the joint regional planning panels but do support the Planning Assessment Commission making decisions rather than the Minister. I have a different view about that. I support the Planning Assessment Commissions, but not as a consent authority.
Mr Frank Sartor:
I see you have changed your position!
Mr GREG PIPER: No I have not; the Minister just did not listen. To be consistent with the principle of elected accountability I believe the Minister for Planning should remain the ultimate decision-maker on any matter considered by the Planning Assessment Commission. I do support assessment by a Planning Assessment Commission of applications that by definition are State significant. It is appropriate that expert professional staff should make recommendations to an accountable elected representative, such as the Minister. The need for that has, in my view, been exacerbated by the high demand by developers for the Minister to assume control of their applications, clearly with a view to a more favourable outcome than if determined by local representatives. Acceding to so many requests since part 3A was introduced has created a proverbial rod for the Minister's back.
Councils are not perfect, I concede. There are inept and even corrupt elected representatives and professional staff. The recent examples of that have involved predominantly Labor councillors and Wollongong council. Why? People can draw their own conclusions, but in my experience one cannot legislate for honesty and integrity; one either has those qualities or one does not—and if one does not have those qualities, it seems there will always by ways around the rules. I believe that the vast majority of people who enter local government are honest and decent, and they get most decisions right. We should not be supporting capricious changes to planning law or even electoral law to deal with the lowest common denominator. Instead the bill should have sought to strengthen local government and improve the quality of decision-making, particularly in those councils that are used as examples of why change is necessary. Democracy may not be perfect, but it is better than the alternative.
I do not agree with or support allegations against the Minister of impropriety or of his being compromised by developer contributions to the New South Wales Labor Party. Such allegations are made all too lightly. I am sure, however, that the Minister would not have supported the bill in this form when he was the Lord Mayor of Sydney. As a matter of fact I believe he would have been an articulate and vociferous opponent of it. The results of a poll conducted by the Property Council of Australia, one of the leading industry groups supporting this bill, shows that 71 per cent of the population claim that they have heard nothing about the bill.
There are plenty of ways to interpret the results of that particular poll. This was a very contemporary poll that was conducted in May this year. This is a huge concern for such an important matter and also begs the question as to whether this should be advancing through this House with such haste. It may not seem like it but I do support the Minister's desire for improvement and much of this bill I could support. However, the removal of local consent powers is abhorrent to me and I will therefore vote against the bill and support stated intentions for an upper House inquiry into planning reform. I would further support commencement on the much more significant approach of a "ground up" rewrite of the State's planning legislation.
Ms GLADYS BEREJIKLIAN (Willoughby) [12.50 a.m.]: I make a brief contribution on the Environmental Planning and Assessment Amendment Bill 2008 and cognate bills. I do so recognising the representations made to me by many local community organisations, which strongly oppose the legislation. Respecting their views and in line with the decision of my party, I will not support the legislation. I make the point also that although the Government's initial consultation process was very rushed, many community organisations made the effort to put in submissions but they are concerned that the Government has clearly ignored those submissions.
I place on record the names of those community organisations. They included Willoughby Council, North Sydney Council, the Federation of Willoughby Progress Associations, the Castlecrag Progress Association, the Castle Cove Progress Association, the Walter Burley Griffin Association, the Willoughby South Progress Association, the Northbridge Progress Association and the Naremburn Progress Association. They all made submissions in strong opposition to the bill. At the outset I state that every single organisation in my electorate that made a submission supports planning reform. They all accept the need for reform but they cannot stomach the way in which the Government has approached the issue or the provisions of the bill, which they feel could irrevocably change the future of local communities and the way decisions are made at a local level.
Local organisations have expressed concern that the proposals remove development decisions from elected local government representatives, placing those decisions in the hands of private certifiers, who are paid by development proponents. That concern has been raised many times, both locally in the press through representations and through community action in opposition to the Government's proposals. Another major concern of Willoughby residents is that the proposals will result in approved development in residential areas without any reference or notification to the community or adequate consultation with affected neighbours. We are blessed to have wonderful surroundings and many residents have worked hard during their lifetime to be able to live in the Willoughby electorate. They are concerned that their lifestyle and local environment will be forever put at risk following the passing of these bills.
I will briefly outline major concerns expressed by my community. Notwithstanding their support and recognition of the need for reform in the planning process, they acknowledge that the problems, both intended and unintended, as a consequence of these proposals will make the situation much worse than the status quo. Rather than reforming the system, we will actually go backwards. With respect to red tape and complexity, previous speakers have highlighted the huge range of decision-making bodies to be established under the legislation. They include the Planning Assessment Commission, joint regional planning panels, the independent hearing and assessment panels, planning arbitrators, new review panels for other panels. The number of panels and decision-making bodies will exacerbate, not simplify, red tape and complexity. Each of these new layers of bureaucracy merely duplicates existing processes by other bodies, such as the Land and Environment Court, commissions of inquiry or local government. The added bureaucracy will make the system much more complex and increase red tape rather than have the opposite effect.
My local organisations and I believe that the bill will reduce transparency and give unprecedented discretionary powers to the Minister on matters such as the appointment of planning panellists. Under the bill, planning controls can be created without any public consultation. Probity concerns have been raised about panellists being appointed on an ad hoc basis who may be influenced unduly by the Minister of the day who appoints them. Concerns were also expressed about local environmental decisions being taken away from those who best know their communities.
I could speak for much longer but given the early hours of the morning and that I have raised this matter during private members' statements, I will conclude by thanking my local community organisations for their vigorous representations to me and clear submissions. I support their concerns. They believe strongly that local communities will be completely sidelined once this environmental bill is passed because it represents a massive centralisation of decision-making power. It increases complexity rather than simplifying issues. The biggest concern is that the Minister missed an enormous opportunity to make a positive planning reform process work. Instead he chose the alternate path. He chose not to have proper consultation in the initial phase and not to include amendments that would enhance the pride that people have in their local communities and local decision making. He has taken a retrograde step; he has increased complexity and reduced transparency. He has created probity concerns by making the process much less palatable for local communities. On that basis I cannot support the bill and again thank my local organisations in the Willoughby electorate for providing me with ample ammunition to use in this place on this occasion and previous occasions.
Mr ROBERT OAKESHOTT (Port Macquarie) [12.56 a.m.]: At the outset, I state that it is 12.56 a.m. and for two months we have been twiddling our thumbs in this Chamber with a very light legislative program. It is disrespectful to members of Parliament in the lower House that the Minister for Planning, or the Executive, or the Leader of the House has decided to ram through such substantial legislation in one night. Whoever made that decision should think twice before ramming legislation through this Chamber. There is no question that the Environmental Planning and Assessment Amendment Bill 2008, the Building Professionals Amendment Bill 2008 and the Strata Management Legislation Amendment Bill 2008 comprise substantial reform. I understand that the Strata Management Legislation Amendment Bill is supported and that changes to places of public entertainment are well supported on the mid North Coast as those laws have been a thorn in the side of many in New South Wales. So those changes are welcome.
The Environmental Planning and Assessment Amendment Bill amends the Environmental Planning and Assessment Act 1979, which brings together the three tiers of State, regional and local plans. Very generally, the bill abolishes regional environmental plans and introduces a range of State and local appointed panels, the Planning Assessment Commission, joint regional planning panels and independent hearing and assessment panels. I will not get too wound up in the fight between local government and State Government, and who delivers better. I have been a member of this Chamber for 12 years. I have seen reforms come through this place on several occasions in this and other planning-related areas. In the end it comes down to personalities and resources. That is not available to any of us now. In many ways answers to questions raised about whether this is better or worse reform will be answered when the Minister gives the actual names of people appointed to the panels and demonstrates that decent resourcing will be provided.
The North Coast Department of Planning office is under enormous pressure as a growth area. The resourcing of that department is skinny, and development approvals are running behind time. Regardless of structural reforms, resourcing and personalities will save the day. Other members have spoken about that and, although I concur with a lot of those views, for me that is not the driving issue on the mid North Coast. Local councils have expressed their concerns. The North Coast Environment Council has expressed its concerns and I note that the Leader of The Nationals raised its concerns—an interesting alliance is forming between The Nationals and the North Coast Environment Council. I endorse those concerns and concur with the views that were raised.
Private certifiers in my area have expressed some concerns, which I have raised with the Minister for Planning. I understand he is across the issues raised by private certifiers in regional areas, with an exemption put in place. Surveyors and architects have raised issues and generally they are supportive. Some development interest is obviously supportive. Generally, community interest at this time is not supportive but is concerned about what is perceived as an increase in State Government discretion in the planning process and a loss of local autonomy in the decision-making process, whether that is right or wrong.
Along with most members, I have received letters from Patricia Forsythe and various business lobbies; that process has done as much harm as good. We all recognise that. I will comment from an angle slightly different from what I have heard so far. I couch my comments relative to the electorate that I represent. Port Macquarie is largely a lifestyle residential electorate that is very much driven by small business. More than 95 per cent of community business is family based, consisting of two or three people. The commercial business represents less than 5 per cent. A lot of planning reforms are not relevant to the dollars that are talked about in my area. The first part 3A application, currently before the community, is for a peak power plant of $110 million in the Camden Haven area, and it is causing enormous community concern.
I am sure a lot of submissions have gone to the department and the Minister's office. Good and genuine arguments have been raised by members of the community about something that is in the hands of the Minister and the department. I take this opportunity to raise once again the concerns of the community that we are coming to decision-making time in regard to a diesel-fired peak power plant at a time when we are supposed to be climate change friendly. That got me thinking about the vision splendid in the bill of streamlining the planning process and speeding up opportunities for large-scale development. In many ways that is not the direction in which the community is looking—a community which I have been successful at the ballot box four times in being elected their representative.
The community is looking for a combination from the Department of Planning to bring all the various silos of government together in the planning process, so that environmental and economic issues are brought to the table along with community issues. This would help deliver ecologically sustainable development, a phrase we all know, an idea we all say we endorse, but when it comes down to practice and planning detail, it is just not happening; it is becoming a cliché. We are not pulling together all those various silos of government. I find it a fascinating discussion with various arms of government that different people seem to be able to talk about different things. Environmental scientists can take the conversation so far about all the issues they faced, all based on fact and quite well meaning. At the same time, at the other end of the spectrum, the urban planners and various planning organisations talk about their issues almost in a different language.
However, it is a rare person in government who can bring those different spectrums together. In many ways that is the role of members of Parliament, and that is our role as members of this House. That is why I am so disappointed with this planning reform. It continues down the path of simply talking planning to planners and developers. It does not engage with the broader issues facing public sector management in New South Wales and Australia today.
I apologise to everyone that we are debating this at 1.00 a.m. Unfortunately, I play by other peoples' rules, as we all do. My proposed amendment is based on some of the public consultations to the exposure draft that have resulted in some changes. Some of the changes have been quite good, such as the broadening of expertise requirements for members of various panels. That is a good amendment that has come from the exposure draft process. The dropping of the compulsory acquisition issues of land for urban renewal proposals will not proceed. That is a good proposal, and was causing concern. The provision that jumped out at me was the provision to protect Sydney's drinking water catchment to be included in the Environmental Planning and Assessment Act. I find it fascinating that Sydney's drinking water and the Sydney catchment is good enough to be included in the planning process, but the catchments of New South Wales regional areas do not seem to get a look in in the planning process. For that reason I flag an amendment. Catchment management for all of New South Wales should be included in the planning process as part of the consideration.
Further, we all talk about climate change and say that we are believers. There are not too many sceptics, although I have heard a few in this place lately. Climate change is on the agenda and I know that good developers are doing good developments in New South Wales that already take those factors into consideration, despite government. We should codify it, to include it in planning processes. It should considered, as should biodiversity, connected landscapes and energy management. These big issues facing government and public sector management today are not included in this substantial planning reform. They should be, and could be a vision of government in New South Wales.
I accept that to some degree these are ideals that we expect of development and developers. Quite often they will not be able to meet those standards that we, as community representatives, want of those developers and developments. The beauty of today, which takes this away from being some green caftan wearing issue to one that is mainstream and an economic issue, is that we now have offset schemes available. Biobanking is alive in New South Wales to those who cannot meet some of these standards. Carbon sequestration is now on the agenda. We are seeing plantation forestry starting to kick off, quicker in other States but in its infancy in New South Wales. Of course, the new Federal Government talks up its emissions trading scheme. I hope that New South Wales wants to be a part of that.
This could be a great opportunity to drive investment in all three of those offset areas. I flag this amendment, which we will talk about during the consideration in detail stage. I ask every member of this Chamber to consider it, to give an opportunity for a bit of vision and leadership in the Chamber. I ask members to place planning at the centre of government, where it pulls together the silos of the various departments—Primary Industries, Environment and Climate Change—into one sensible planning document that is workable for developers, communities and government. I ask the Minister and the Government to consider that. Despite its having some good aspects, the bill contains too much that is objectionable from a community perspective to give it any support at all.
Mr WAYNE MERTON
(Baulkham Hills) [1.10 a.m.]: I make the point that it is 1.10 a.m. and it is typical of this Government that two substantial events occurred earlier in the day. The first was that in the morning we finished a debate on last year's budget and at midday or thereabouts we debated this year's budget. That cannot be called good planning and it is the reason we are here at this unearthly hour. Nevertheless we are paid to do the job and we proceed with great pleasure. I am concerned about this legislation its effect on local councils and local people. Baulkham Hills is part of Sydney's North West sector, a development for 250,000 people that was planned by a previous Labor Government in 1985 when Bob Carr, who later became Premier, was the Minister for Planning. The North West sector will be the size of Canberra when it is developed.
This legislation will disenfranchise local communities from having a say about the types of developments that will occur in their region. The bill expands the role of certifiers and introduces a plethora of faceless people, bureaucrats and panels that will usurp the functions of elected councils, such as that elected by people living in the Baulkham Hills area. Unfortunately, Baulkham Hills is rapidly acquiring the name "Balcony Hills" as a result of excessive development. Taking power away from local elected representatives will lead to people saying: "We don't want to live in another area that is as congested as other parts of Sydney. We came to Baulkham Hills because we thought we could get peace and quiet on a decent size parcel of land and a decent environment for our children." Handing building development powers to unelected representatives is a detrimental step as far as the people of Baulkham Hills are concerned.
The bill makes multiple amendments to the Environmental Planning and Assessment Act and minor amendments to the Heritage Act and other miscellaneous Acts. The Coalition opposes the bill and will seek to refer it to a Legislative Council committee for inquiry. We share the view of the business community that a major overhaul of the Environmental Planning and Assessment Act is needed but this legislation is just tacked on to the Act, which adds to existing complexity by introducing additional factors to an already congested planning regime. The Coalition believes there should be a complete review of the Environmental Planning and Assessment Act, and that is not possible with this tack-on bill.
The bill creates new overlying decision-making bodies including the Planning Assessment Commission, joint regional planning panels, independent hearing and assessment panels and planning arbitrators, new Planning Assessment Commission review panels, joint regional planning panels, and the appointment of planning arbitrators. This stuff could have come out of Yes, Minister
. Each of the new layers of planning bureaucracy merely duplicates existing processes provided by the Land and Environment Court, commissions of inquiry or local government. The new codes for complying development are extraordinarily long and complex.
The bill reduces transparency and gives unprecedented discretionary powers to Minister Frank Sartor and to other Ministers who may follow him. Planning controls can be created without any public consultation. There are concerns about ad hoc appointment of planning panellists who may be open to undue pressure from outside parties. Who appoints these people is a critical issue in the effective working of these proposals. More development costs will be pushed onto local communities. Local ratepayers will be forced to pay for planning panels imposed by the Minister and they will be required to pay legal costs incurred by planning arbitrators. Councils will face added burdens to finance community infrastructure. The role of local communities in planning will be completely sidelined. They will be cast aside in favour of a central bureaucracy that will be wholly within the control of one Minister, the Minister for Planning. This centralisation of decision-making power will affect the lives of so many people, particularly in the growing area of Baulkham Hills. I repeat that by the time the North West sector is built it will be the size of Canberra and will attract 250,000 additional residents. The bureaucracy will usurp elected representatives. Local people who know what should happen and have a real interest in the area because they have chosen it to be their home will have very little say.
The bill fails to fix the problems introduced into the planning system by Labor over the past 13 years. Tinkering with an already broken system will simply exacerbate confusion, cost and disarray. The fact that councils will no longer have access to the appropriate section 94 levies to provide facilities is a scandal. Who knows better than the local elected representatives what local facilities are needed? For a council to be denied the right to section 94 levies is another tangible sign that this Government is focused on Macquarie Street and centralisation of ministerial control. Local people will just travel along as passengers who have no control over which way the vehicle is going. They will have no way of driving issues. Instead those issues will go straight back to the Minister and a Labor Government whose track record to date has been a disaster. They will leave office with a litany of broken promises and shattered ideals. This legislation is another legacy of that disaster.
Mr PETER DRAPER
(Tamworth) [1.17 a.m.]: I speak at this hour of the morning to support the Environmental Planning and Assessment Amendment Bill 2008. Every council and interest group that I have had discussions with has said that changes are needed. They have differed on what the changes should be but they have indicated that change is essential. This bill provides an opportunity to speed up development applications, which is a very important issue for country communities. Importantly, it also provides an opportunity to improve transparency and to remove the justifiable perceptions of corruption that the community currently associates with the planning process. My one sticking point with the legislation is that the representation balance on the planning panels is weighted towards the Department of Planning. I ask the Minister to correct the situation and weight the process to give local councils a fairer say. After all, councillors live in the local area and are much more aware of community needs and sentiments than the department.
Considering our rapidly changing world, it is timely that we bring such important legislation as the Environmental Planning and Assessment Act into the twenty-first century because a lot of societal changes have occurred since it was introduced in 1979. It is important to ensure that the competing interests of environment and the management of natural resources are balanced with the social and economic welfare of the community in an orderly and economically viable fashion. When the Minister introduced this bill he said there was a national mood for reform, and I think he was referring to Federal participation in the process. However, it seems the national mood for reform is being driven by the concerns of the general community at the ongoing revelations of corruption surrounding the existing planning process. We have seen millions of dollars that should have been invested in health, education and other services spent on corruption investigations.
Many parties involved in the reform process have lobbied and presented submissions on this issue as part of the consultation process. The reaction from these parties indicates to me a general satisfaction in the way the process has developed. It appears the Government has listened, as there have been some 50 changes to the original package. For example, the New South Wales Chapter of the Royal Australian Institute of Architects has told me it is pleased that the Minister for Planning has responded positively to the representations of professional organisations. They point out that the bill will reduce the total number of development applications by making many forms of houses and house alterations "complying developments" within the definition of the Act.
They believe most State significant and major project applications will be delegated to independent planning panels with approval powers. These panels will comprise members with professional expertise in accordance with agreed national principles. This should simplify the rezoning process as the system proposed is clearly related to the size and impact of development and rezoning proposals, and it extends the rules governing certifiers including limiting exclusive client lists and extending certification to houses and house alterations. I note the Minister has addressed the concerns of country councils in regard to this.
It is important to note that the needs and expectations of rural and regional councils are vastly different to the needs and expectations of metropolitan councils. I understand the concerns rightly expressed by metropolitan councils; however, rural and regional New South Wales interests call for expedited processes that encourage expansion and job creation. This is a big issue. While Sydney is overdeveloped and bursting at the seams, in rural and regional New South Wales we are crying out for development opportunities and they must not continue to face the delays that are currently a frustrating part of the process.
I will share with the House a situation in Tamworth. There has been a rash of housing development in Tamworth over recent years to the point where the available land bank for development is starting to dry up. In 1996, the former Tamworth City Council and neighbouring Parry Shire developed a concept for future residential development that would balance the city's housing development around the central business district. This has become known as the Hills Plains Development. The plan is for about four and a half thousand blocks that would meet Tamworth's requirements for the next 25 to 30 years. However, this vision has not been easy to bring to fruition. In 2004, following the merger of the two councils and the formation of the Tamworth Regional Council, there was a real push to realize the vision. Over that period of time the goal posts have moved many times, requiring backtracking, additional investigations, and lost investment potential.
Since then, critical time frames associated with the Hills Plains local environmental plan have been that on 19 January 2006 council notified the Department of Planning of the Hills Plains local environmental plan in accordance with section 54, and on 4 July 2006 council advised the department of section 62 consultations and requested it to provide a section 65 certificate. On 15 November 2006, the department issued the section 65 certificate, and on 18 January 2007 the council requested the department to finalise the plan in accordance with section 68. On 2 November 2007, the Hills Plains local environmental plan was gazetted. Following gazettal, there were still more frustrating delays as government departments negotiated a fee structure per allotment for the provision of services.
In November 2007, the department sought expressions of interest from other government departments and agencies seeking contributions from the infrastructure levy. In December 2007, the department met with landowners and explained that 39 requests were received, which had been reduced to a single claim, and was the Roads and Traffic Authority upgrade cost of Manilla Road from Tribe Street to the city. The department advised that the Roads and Traffic Authority wanted eight months to design and cost the works to calculate the levy. The department advised the landowners that the Roads and Traffic Authority was told this was unacceptable and unless the levy was finalised by 14 February 2008 there would be a nil determination.
On 4 March 2008, the department advised the landowners that as yet the matter had not been finalised and it would take a further one to two weeks for the Roads and Traffic Authority to obtain chief executive officer sign off to the figure, at which time it would be advised. The department then further advised that the legislation prescribed that any such levy must be advertised for a period of 28 days before it can be enacted, regardless of whether the agreement is prepared to be accepted and signed.
On 16 April 2008, the developers met with Richard Pearson and the Department of Planning, and at that meeting they conveyed their concern at the delay and the seeming intransigence of the Roads and Traffic Authority. Mr Pearson advised that a review panel would determine the levy at its meeting on 23 April. On 1 May 2008, the department forwarded the draft Voluntary Planning Agreement for comment. The levy was established at $1,680 per lot. Alternatively, there was an option to pay for upgrades. At this rate, and using the formula provided, the department had adopted a capital cost for the works of $8.4 million.
On 8 May 2008, the developers were supplied with a quote from Daracon, a Roads and Traffic Authority accredited contractor, to complete the works at a cost of $1,859,000. This has been forwarded to the Roads and Traffic Authority for comment. I find it extraordinary that the developers have been advised that while their independent quote is $1.8 million, the Roads and Traffic Authority is now recommending a four-lane reconstruction at a cost of $24,000,000. Just so it is clear, I will repeat the figures. The developers obtained a quote from a Roads and Traffic Authority accredited contractor who is prepared to complete the work for $1.8 million but the Roads and Traffic Authority is saying the job will cost $24 million. No wonder there is frustration about the current process. I think this is a classic example of highway robbery. In summary, the levy using the Roads and Traffic Authority calculation is $4,500 per lot; the department compromise calculation is $1,680 per lot; and the calculation based on the Daracon quote is $375 per lot. Quite obviously the levy has not yet been agreed to.
The delay to date arising from the hold up to the local environmental plans is 12 months. The delay due to the inability to obtain a reasonable agreed works cost from the Roads and Traffic Authority is six months. The cost of the delay in holding costs is now conservatively valued at around $1 million. All of these expenses will eventually be borne by the purchasers of the properties, dramatically increasing costs and reducing housing affordability. Consideration of the content of the bill probably added to these delays but hopefully once enacted it will considerably reduce delays for future developments. While existing available land has met Tamworth's requirements up to this point, it is becoming increasingly urgent for the Hills Plains land to become available as builders are now facing a shortage of available sites. A local councillor told me:
It's frustrating trying to promote a development in a regional community. Council has done some very good work, but the process is so slow. We have been stalled by many legislative and technical changes, and there is growing frustration for councillors, builders, developers and the community at large.
He went on to say:
Government departments and bureaucrats appear unaware of the implications for country communities caused by long delays in approving important local planning initiatives. I believe regional centres have lost opportunities to other States as a result of such delays.
There are real perceptions with developers that it is currently much easier to do business in Queensland, for example, than in Tamworth.
Where major investment is concerned, a process taking six months may be acceptable but if it blows out to several years you cannot blame the investor for looking elsewhere. The key reform I hope this legislation can achieve is stopping such outrageous delays in local environmental plans and spot rezonings. The system will be vastly improved if we can achieve this. I reiterate that I do not support the further removal of planning controls from local government. While I have no objection to a planning panel, the majority representation should be weighted in favour of local government.
Local Government provides the conduit for transparency in the local community when developments are being debated and progressed. This local accountability should remain a paramount feature of any legislation and I ask the Government to consider amending the legislation accordingly. Speeding up the processing of local environmental plans will have positive economic and social benefits for our communities while cleaning up the opportunity for corrupt dealings and will remove a public perception that is damaging to the political process.
In conclusion, I thank the Minister, who kindly facilitated a meeting with my local council general managers or their representatives. They have not come back to me with any concerns so I am assuming that the meeting was constructive. I hope the Government can correct the balance on planning panels to favour local government, and with that request I commend the bill to the House.
Mr ANDREW CONSTANCE
(Bega) [1.27 a.m.]: Opposition members have eloquently put many arguments about why we are not supporting the bill. The fact that 150 pages of legislation are being rammed through the House in this way is disappointing because the various stakeholders have mixed views about it. As a local member my concern rests with the communities on the far South Coast who from time to time express frustration at the way in which planning issues are handled in this State.
One of the key reasons why we are saying, "Let's overhaul this properly and not tack on to the end of it" is that in seeking to streamline the legislation the Minister is creating more tiers of bureaucratic structure that will just make it more complex. The planning process will be duplicated and it will cost more to run. People will have to face the Planning Assessment Commission, joint and regional planning panels, independent hearing and assessment panels and planning arbiters, coupled with Land and Environment Court processes, commissions of inquiry and local government. The list goes on and on.
The frustration for local communities is that coastal development triggers vigorous community debate. I need only refer to a number of issues that the Minister for Planning is no doubt aware of, including the Merimbula retail floor space restriction, development density at the Tathra River Estate and, more recently, a 19,000-odd square metre retail proposal at Surf Beach near Batemans Bay.
Earlier the shadow Minister said that a key issue related to the fact that local communities believed they had been sidelined. Councils are concerned about section 94 contributions, the duplication of processes, and the like. We have expressed concern about transparency, the centralisation of power in one Minister, the appointments process, and costs. I oppose the legislation. All members should oppose it rather than seek to amend it. We should completely rewrite it and then implement a planning system that makes this State competitive with other States and the envy of the world. We want to get New South Wales back to where it should be—the leading State in Australia.
Mr FRANK SARTOR (Rockdale—Minister for Planning, Minister for Redfern Waterloo, and Minister for the Arts) [1.31 a.m.], in reply: I thank all members for participating in debate on, and for their valuable contributions to, the Environmental Planning and Assessment Amendment Bill 2008. Before I deal with specific issues I remind members of the beneficiaries of these reforms. I remind them of one compelling statistic, that is, that in 2006-07 67 per cent of all development applications had a capital value of less than $100,000. These are not developers, investors, or property speculators; these are ordinary people who have been forced to endure a cumbersome, lengthy and uncertain process for minor works.
We have received numerous letters from residents supporting the reforms. These letters are not ideologically driven or based on false information peddled by the Local Government and Shires Associations; rather, they are letters of fact. Only last week a letter written in response to a newsletter by the member for Sydney inviting a person to protest about the planning changes stated:
Six months ago we may have been convinced to do this. However, having just been through the DA approval process with the City of Sydney, it is with regret that we have to say they maybe such changes, if carefully implemented, are necessary. Twice now we have had first-hand experience of how councils are incapable of handling residential DAs consistently and within a reasonable timeframe.
That is an overwhelming message that we have to change the planning system. Most members have conceded that that is the case. It is a pity that the Local Government and Shires Associations has not entered this debate in a meaningful or honest way, and has failed to show any leadership in this debate. If it were genuine about creating a better planning system it would have come up with solutions or practical propositions, not just misleading rhetoric that ignores the real benefits that these changes will bring to communities. Not just mums and dads will benefit; there are practical measures to fix problems in the system that will benefit all users, including local councils, the professions, local communities as well as industry.
I believe that these reforms are a balanced and measured response. In my agreement in principle speech and the accompanying policy statements I provided a comprehensive outline of the policy intent of the legislation. I will now reply to some of the key issues that were raised during debate. The first general criticism was that the process had been too quick. This process has been in place for over a year, with at least 10 months of public consultation with stakeholders, local government and practitioners. Last year all the issues were flagged in a comprehensive discussion paper. I have met with many councils, for example, Lismore, Ballina, Bega, Byron Bay, Shoalhaven, Coffs Harbour, Dubbo, Parkes, Forbes and Newcastle, to name just a few.
These reforms were negotiated over a period of five months with the certification liaison committee, which comprised members of the Local Government and Shires Associations, local government practitioners, private certifiers and the Housing Industry Association. A complying development expert panel developed the draft codes. The majority of members on that panel are either current or former local council people who have met on many occasions. It has been argued that there is not enough detail to support the legislation. It is not unusual that subordinate legislation and guidelines follow the legislation. Nevertheless, six regulations have been listed in this bill so that people can see exactly what is being proposed.
In addition, I placed on the table five policy statements that indicate how we would appoint regional panels, arbitrators and so on. A complying development code is already on public exhibition. Interestingly, last week the Coalition for Planning Reform, which comprises 12 organisations—the Planning Institute of Australia, the Institute of Architects, property industries, chambers of commerce and other bodies—changed its position. It now no longer supports an inquiry and believes that this legislation should go through both houses of Parliament. Reference was made in debate to part 3A, but the bill does not propose any significant changes to the system introduced in 2005 which, at the time, was supported by the Opposition.
Most part 3A projects automatically come to the State for assessment and the vast majority of them would now be delegated to the Planning Assessment Commission. The member for Bega and other members who have asked me to intervene in local matters defended the autonomy of local communities, but they run to me when they want intervention to solve problems that local communities often want the Minister to solve. Many Opposition members claimed that these reforms would centralise power. The Minister would lose 80 per cent of all development decisions to the Planning Assessment Commission, but local government would lose only 2 per cent of its decisions to regional panels and planning arbitrators. It has been suggested that I would lose 2 per cent of development decisions and keep 98 per cent when, in fact, the figure would go from 100 per cent to 20 per cent of development decisions. It is one of the great furphies of this debate.
This legislation is about decentralising power—devolving power to sensible levels, whether it is State significant, regional or local, or whether it relates to neighbourhood issues. I tried to listen intently to the earlier contribution of the member for Wakehurst and shadow Minister, who spoke for a long time. He said that if the reforms were sound they would have received widespread support from professionals at the coalface, such as planners and architects and not just the peak groups. I am pleased to inform the member for Wakehurst that I received such support. He should go back to the survey that was conducted by the Institute of Planning and the Institute of Architects, which reveals that 67 per cent of planners said they supported the Planning Assessment Commission and 73 per cent of architects said the same thing: 69 per cent of planners supported joint regional planning panels and 78 per cent of architects supported them.
Professional bodies conducted these surveys of their members; they were not conducted by us or by anyone else. The survey reveals that 56 per cent of planners supported the use of arbitrators and 76 per cent of architects supported them; 77 per cent of planners supported complying development codes and 76 per cent of architects supported them. That is what the professions have said to us. When I meet with the professions they keep saying that they want these reforms. People at the coalface have to put up with the exigencies and complexities of the current system. The member for Wakehurst referred to the cost of joint regional panels and, in virtually the same breath, he rambled on about the Wollongong corruption inquiry.
Let me join the dots for the member for Wakehurst, who had a lot of dots in his speech. These panels will stand in the shoes of the council, consider the views of the community and the assessment report of the council's professional officers, and then make a determination about the delays and politics that are currently plaguing the system. The member for Wakehurst raised the question of costs. Untangling the system for small applications will free up council resources and enable planners to focus on strategic work and larger applications. However, as I have said repeatedly to local government, if there is evidence that councils are bearing increased costs I would be happy to look at the development fee structure, in particular, for regional standard development.
I am receiving contradictory messages about the inquiry timeline. Opposition members said that there was an urgent need for reform. The member for Wakehurst said that not one Opposition member was not sympathetic to current frustration with the planning system. The Opposition's solution is another 12 months of delay. If Opposition members want reform right now why did they not provide proper policy alternatives? All that they want is more delays, which is all about politics and not really about the substance of this bill. Council performance statistics speak for themselves. Some issues have not been correctly addressed.
The member for Pittwater, an expert in environmental planning law, unfortunately does not understand some aspects of the bill. For example, the first stage of complying development does not apply to heritage conservation areas. We foreshadowed that there might be opportunities to apply it to some areas, but it will need policy work to ensure that we do not put complying development into merit assessment. I rebut the suggestion from Opposition members that amendments to the Heritage Act are related to these codes. They are not related to these codes. Changes to heritage relate to local environmental plan making and are intended to allow heritage considerations to be dealt with upfront at the gateway stage when decisions are made relating to consultation.
The member for Pittwater also raised a number of issues about regional panels. The Act clearly provides that they are not subject to the direction or control of the Minister in exercising their functions. They are obliged to comply with the statutory obligations for all consent authorities. Any breaches of these procedures could render decisions open to challenge. There is a bigger problem when it comes to panels and the member for Pittwater, who I note was the only Opposition member to make a submission on the planning reform discussion paper. In his view panels charged with conducting public hearings on difficult proposals, such as Currawong and Catherine Hill Bay, are costly and divisive. He said:
The use of expert planners in the planning system minimises the role of democratic expression by local communities and will ultimately increase conflict and resentment, which will undermine the speedy resolution of development issues and lead to a decline in public trust.
The only problem for the member for Pittwater is that the use of panels has been endorsed already in principle by his leader. This attempt to depoliticise the system is just as applicable at the local level as it is at the State level. In the words of the Leader of the Opposition:
We need to separate the strategic and the policy from the operational.
That is precisely what this bill does for the bulk of State and regionally significant planning decisions. The member for Pittwater then became confused about State environmental planning policy 1 in relation to the additional appeal right. This does not affect the operation of State environmental planning policy 1, which still must be complied with. The member said that the planning system is all about process. That is inspirational talk from the Opposition. I make no apologies for seeking to ensure that we have a more efficient and transparent process that delivers the best possible outcome for the people of New South Wales. The planning system exists to allow property owners to achieve their objectives within constraints and to protect other owners, residents, the environment and the public interest. People expect decisions in a reasonable time, not to be held hostage by those who are addicted to process.
The member for Sydney has approached this debate using the most exaggerated, intemperate and strident language. This is not the first time we have heard this sort of language from the member. In 1988 on the City of Sydney bill the then member for Bligh called the Greiner Government bill a "betrayal of the people of Sydney". She said, "The City of Sydney bill is a sleight of hand of monumental proportions." The member called the proposal for the city a "sham" and claimed that "the city's users and residents have all but been abandoned." Interestingly, last year the member was quoted as saying:
The Central Sydney Planning Committee is working exceptionally well. It depoliticises big city projects such as the Westfield shopping centres to ensure that development approvals and planning controls are in the public interest.
On that occasion the member supported independent panels. Tonight the member for Sydney wanted a headline, so she made the remark, "The reform paves the way for corruption and would exclude people and councils." She said that this is "a shanty town amendment bill rubbishing our cities, our State and our future," and possibly the whole solar system. She wanted a headline and she got a headline. The member's speech was entirely predicated on the convenient fiction that elected councillors pore over and debate every application they receive. They do not. In fact, the local development performance report tells us that for the last financial year on average only 4 per cent of development applications were determined by elected representatives. In 55 councils more than 98 per cent of determinations were made under delegation to professional staff. Are they also "unelected hired hands", to borrow her term? The joint regional panels will not undermine councils and they certainly will not undermine democracy. We anticipate that with these changes councils will still determine well over 97 per cent of all development applications.
The reforms will strengthen democracy by allowing the introduction of neighbourhood appeal rights, which have been debated tonight. These rights will give locals a chance to appeal inappropriate developments in their neighbourhoods. The member for Sydney also claimed that we had forgotten the mums and dads next door. That is simply not true. The complying development code that we are developing in partnership with local government will protect neighbours. The rules will be clear and everyone will know what they are. If she ventured out of the gentrified neighbourhoods of Sydney she would find people who do not have the resources to endure lengthy and costly court and council proceedings. These reforms will help make life easier for those people. I note that the member for Sydney strongly opposes the significant reforms to plan making, including the gateway process. Perhaps she should have consulted more widely on this issue because the proposal received virtually universal support from stakeholders, including councils.
Another claim was that the bill does not address sustainability and that the complying development codes are not consistent with sustainable development. Again, that is not so. One of the key good design principles that form the basis of the development standards in the housing code is an environmentally sustainable design. In addition, complying development will still require a BASIX certificate. The code additionally makes water tanks, solar water heaters and photovoltaic systems exempt from development. The member for Wakehurst acknowledged that the proposals in relation to development contributions represent a fair balance.
Mr FRANK SARTOR:
Mr Brad Hazzard: I think I have been verballed.
Go back and look at the Hansard
. Councils will be able to levy for all the necessary infrastructure that they build and they will be held accountable for their buildings. I would call the member for Lane Cove a buffoon, but I am not allowed to use unparliamentary language. The member's personal remarks were unbecoming and typical of his contribution to public debate. I will not dignify them with a response. The member showed his complete ignorance of the bill by confusing the role of planning arbitrators and the use of complying development. Planning arbitrators have nothing to do with complying development. He does not understand. These reforms will allow more neighbourhood challenges to development decisions. They will allow people to undertake low-cost arbitration rather than spending $20,000 to $30,000 on court cases. They will reduce developer controls on strata committees in new buildings and create much stronger limits on private certifiers. The uniform codes will make it easier for homeowners to renovate their homes.
I take this opportunity to thank my colleagues for their contributions to the debate. I also thank staff, particularly the Director General of the Department of Planning, Chris Johnson, Yolande Stone, Marcus Ray, Eloise Murphy, Brett Whitworth and Neil Cocks, my chief of staff, and Andrew Abbey and all the staff in my office who worked tirelessly on this very important reform. I also thank Parliamentary Counsel Don Colaguiri and those members of the working party who worked on the policies. I commend the bill to the House.
Question—That these bills be now agreed to in principle—put.
The House divided.
Mr J. H. Turner
Mr R. W. Turner
Mr J. D. Williams
Mr R. C. Williams
Question resolved in the affirmative.
Motion agreed to.
Bills agreed to in principle.
Consideration in detail requested by Mr Frank Sartor.
|Ms Burton||Mr Stokes|
|Ms Gadiel||Mr Stoner|
Consideration in Detail
Mr ROBERT OAKESHOTT
Clauses 1 to 5 agreed to.
(Port Macquarie) [1.54 a.m.]: I move:
Page 6, schedule 1 . After line 9, insert:
Special provision for catchment management, climate change, biodiversity, connected landscape and energy management
(1) In this section:
means an area of the State to which the Catchment Management Authorities Act 2003 applies, and a catchment action plan is in place.
is as defined by the NSW Minister for Climate Change, based on latest available information, and as tabled in Parliament on an annual basis.
is as defined by the NSW Minister for the Environment, based on latest available information, and as tabled in Parliament on an annual basis.
refers to the links to and between biodiversity "hot spots", and is at the discretion of both the NSW Minister for Planning and the NSW Minister for the Environment, with decisions on outcomes to be tabled in a report to Parliament on an annual basis.
refers to the energy demand and supply within NSW and the details of any offset/trading schemes in energy. A management report on this will be tabled in Parliament on an annual basis by either the Minister for Energy or the Minister for the Environment.
(2) Provision is made in a State Environmental Planning Policy requiring a consent authority to refuse to grant consent to a development application relating to catchment management, to climate change, to biodiversity, to connected landscape, or to energy management, unless the consent authority is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on each.
I shall be brief because it is late. We all play by someone else's rules and I apologise for that. Once again the Executive shows a lot of disrespect to all members in this Chamber because we are still here. The science is in and the policy is in. I gather that both sides will oppose this amendment. However, I am pleased that the Opposition has indicated it will try to get these issues dealt with through an inquiry of a standing committee in the upper House that it will move to establish. I hope that in good faith the Government does likewise. If that is so, I will not speak for too long and we can all go home.
Mr FRANK SARTOR
(Rockdale—Minister for Planning, Minister for Redfern Waterloo, and Minister for the Arts) [1.57 a.m.]: The Government opposes this amendment.
Mr BRAD HAZZARD
(Wakehurst) [1.57 a.m.]: The Opposition understands what the member for Port Macquarie is trying to achieve, which is an appropriate consideration in the context of this planning bill. The Opposition generally would support the environmental issues that relate to catchment management, climate change and biodiversity issues and in principle we do support them. However, as I indicated to the member for Port Macquarie in earlier discussions, the Opposition will oppose this amendment simply because this is a Government bill with which we disagree. We will not engage in amendments to a bill that we inherently think is dysfunctional and will cause further problems for the planning system. However, when the bill is sent to the Legislative Council we certainly will make every effort to have the issues he has raised in this amendment included in the agenda for the committee inquiry that the Opposition will move to establish. I indicate again our strong opposition to the bill, but indicate also that we oppose this amendment.
Ms PRU GOWARD
(Goulburn) [1.58 a.m.]: I support the comments of the shadow Minister and oppose this amendment as it will not address the environmental concerns it claims to address. It certainly cannot improve on a bad bill. I example the rifle range at Hilltop, which has been referred to an independent panel only after a long and continuous campaign waged against it by the residents of Hilltop. The opposition of the Wingecarribee Shire Council to the rifle range on the grounds of noise and traffic problems also is well identified. I do not see any capacity with this amendment to improve on that process. Certainly other mining and industrial developments in the Goulburn electorate also are beyond the reach of this amendment and the control of local residents. This amendment does nothing to address those difficulties and on those grounds needs to be opposed.
Question—That the amendment be agreed to—put.
Division called for and Standing Order 181 applied.
Question resolved in the negative.
Schedule 1 agreed to.
Mr FRANK SARTOR
(Rockdale—Minister for Planning, Minister for Redfern Waterloo, and Minister for the Arts) [2.02 a.m.]: I move Government amendment No. 1:
No. 1 Page 37, schedule 2.1. Insert after line 7:
 Section 96 (3A)
Insert after section 96 (3):
(3A) For the purposes of the application of section 79C (1) under subsection (3):
(a) the consent authority must treat the application for modification as if it were an application for development consent made at the time the consent authority is determining the application for modification, and
(b) without limiting paragraph (a), the provisions of any environmental planning instrument apply to the application for modification as if it were an application for development consent.
The need for this amendment arises from a recent decision of the Land and Environment Court; a decision that was handed down by the court after the bill was introduced. The amendment deals with the modification provisions in the Environmental Planning and Assessment Act 1979. I am aware that some applicants are relying on existing modification provisions to avoid certain development standards that otherwise ought to apply to the development.
The matter was recently brought to a head by a decision of the Land and Environment Court in Progress and Properties v Burwood Council
. In that case the court approved an application for modification that significantly exceeded the development standards relating to height and floor space ratio. Section 96 of the Act already requires the consent authority when determining a modification application to take into consideration the relevant matters referred to in section 79C, including provisions of local environmental plans. Unfortunately, those requirements have over time become so watered down that the consent authority only has to pay lip-service to the development standards in local environmental plans when determining a modification application.
The proposed amendment will ensure the consent authority must give proper consideration to the relevant controls when determining modification applications. It will not, however, open up the whole of the consent for reassessment, just those aspects that are directly and indirectly related to the proposed modification. As part of these changes I will also amend State environmental planning policy 1 to make it clear that SEPP 1 applies to modification applications as well as development applications. I want to make it clear that the proposed amendment will not reduce the flexibility that is provided by SEPP 1: this will remain. The only change is that SEPP 1 will now apply also to modification applications. These changes will ensure greater transparency and accountability in our planning system.
Mr BRAD HAZZARD
(Wakehurst) [2.03 a.m.]: The Opposition has put on the record very clearly its opposition to the bill. We have voted against the bill but we do not propose to vote against the amendment moved by the Government because this is the Government's bill and it brings it into the entirety of the Government's bill. As a matter of reasonableness and fairness we will not oppose the amendment. We want the matter tried on its merits when it moves to the upper House.
Motion agreed to.
Amendment agreed to.
Schedule 2 as amended agreed to.
Schedules 3 to 5 agreed to.
Order! The House will consider in detail the Building Professionals Amendment Bill 2008.
Clauses 1 to 4 agreed to.
Schedules 1 and 2 agreed to.
Order! The House will consider in detail the Strata Management Legislation Amendment Bill 2008.
Clauses 1 to 5 agreed to.
Schedules 1 and 2 agreed to.
Consideration in detail concluded.
Passing of the Bills
Motion by the Hon. Frank Sartor agreed to:
Bills passed and transmitted to the Legislative Council with a message seeking its concurrence in the bills.
That these bills be now passed.