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- 9 March 2006
Environmental Planning and Assessment Amendment Bill
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Page: 21350
Second Reading
Debate resumed from 8 March 2006.
The Hon. PATRICIA FORSYTHE [3.32 p.m.]: Yesterday during debate on the Environmental Planning and Assessment Amendment Bill in the other place Opposition members expressed concern about various clauses of the bill. They said that some parts of the bill were acceptable but that other parts were not. The Minister responded by interjecting, "Are you going to cherry pick?"—I think that was his exact phrase. I make the clear statement to the House and to the Government this afternoon that the Opposition will not cherry pick from this legislation; the Opposition will oppose the entire bill.
Two parts of the bill create no problems. The relevant interest groups with which we are in contact have expressed no concerns about amending the Growth Centres (Development Corporations) Act 1974 to allow for the appointment of a chief executive officer, and amending the Redfern-Waterloo Authority Act 2004. However, the Opposition believes it is better to reject the entire bill to avoid being left with some dog's breakfast of legislation containing part-amended clauses. Like my colleague the shadow Minister for Planning in another place, I thank the Government for the briefing on the bill that I received last week. However, I subsequently made the extraordinary discovery that the Government failed to seek the opinion of many relevant organisations that should be consulted—indeed, they should have been in partnership with the Government—about planning legislation in New South Wales. The Government did not afford them that privilege. The Local Government Association was not consulted and, judging from the letters and emails that I have received, I suspect the Government also ignored the views of many other relevant groups. As a result, councils throughout New South Wales are enormously concerned about the bill.
The bill is a slap in the face for local government and local communities in this State. Last week I downloaded some material from the Internet in an effort to be better informed for this debate. I came across a media release from the New South Wales Urban Taskforce headed, "NSW Urban Taskforce calls on Libs and Nats to support planning reforms to go before parliament next week". I must inform the task force that we are not in agreement on this occasion—but not because the Coalition does not share some goals of the Government and the task force. In fact, I suspect that the entire community wants a strong and effective planning system in New South Wales that will deliver development—be it houses or subdivisions—efficiently and at minimum cost. In addition, the Coalition agrees with the Government that it is important to have a strong strategic overview of the direction of future development throughout New South Wales.
However, the rhetoric of the Minister for Planning in his second reading speech and in some of the accompanying media releases and the drafting of this bill do not progress the cause of planning in New South Wales. They instead erect barriers between the State Government and local government, and the New South Wales Opposition does not want to help to build those barriers. We certainly believe some local councils can do better. But we argue that we must change fundamentally the way in which we address planning issues. The Minister will achieve little through this bill. The Minister came to the Planning portfolio from local government, and in this bill I believe he has let down all the people with whom he once stood shoulder to shoulder.
I visited the Department of Planning web site to find some information about the bill. Broadly speaking, I have always understood that the role of government departments is to ensure the efficient administration of Acts of Parliament and to provide factual and appropriate information to the public. Any spin is left to Ministers and members of the elected arm of government. That was the division of roles under the last Coalition Government. Therefore, I was somewhat shocked to discover on the New South Wales Department of Planning web site under the heading "New South Wales planning reforms" information sheet No. 2 of February 2006 on the Environmental Planning and Assessment Amendment Bill. It is not an information sheet; it is propaganda.
I am extraordinarily disappointed in the Department of Planning. This document constitutes a misuse of its resources. If there is to be spin, it ought to be the responsibility of the Minister, but he has compromised his own department. Under the heading "Planning administrators and planning assessment panels", which is one of the features of this legislation, the document states:
However, there is strong evidence that some local councils are not assessing development applications in a timely manner.
The information sheet does not set out the provisions of the bill, it puts out spin. New South Wales needs laws that are clear to the community and investors. It states in subjective, not objective, language that the Minister will appoint an administrator. The department attacks local government, for example, when it states in its document:
NSW needs to ensure that investment and job creation in this State is not blocked by tardy decision-making.
One would expect that type of spin from a Minister and his office, not from bureaucrats in the department. That is how this bill is defined in this document for those seeking to understand the nature of the legislation. It is an absolute disgrace that emotive, subjective language is used to state the objectives of the bill. If the Government is misusing the bureaucracy of New South Wales, it is no wonder its days are numbered. The information on that web site was most enlightening, and I will continue to monitor it into the future and question the Minister about the cost of maintaining such a subjective and offensive web site in the name of the Department of Planning. The site does not provide information on legislation; it provides derogatory spin, to which I should have thought local government would take enormous offence.
The bill has a number of separate objectives. The first relates to contribution plans for the provision of infrastructure in relation to development within special contribution areas, which are largely defined and prescribed to growth centres. However, I understand from the bill that they will not be limited to growth centres, which are principally, but not restricted to, areas created in the north-west and south-west of Sydney and the Honeysuckle development area in Newcastle. A number of concerns have been raised with the Opposition about those matters to which I will return shortly.
The second objective refers to development control plans. The Minister will be able to give directions to council in relation to section 94 contributions and development plans and other matters. I said earlier that local government and communities could feel let down and insulted by this Government and the rhetoric that underpins this legislation. Development control plans and local environment plans are at the very heart of the role and responsibility of the planning hierarchy in local councils. If one were given the task of giving a school or university student some understanding of the planning system in New South Wales, one would describe it as a hierarchy within which there is one role for State Government and another for local government. The role of local government is the development of control plans that guide and oversight what occurs in local areas to determine and put on notice local environment plans that are the subject of approval of the Minister. At least that was the role prior to the introduction of this bill.
The Opposition will do all it can to stand up for the rights of communities. The Minister's rhetoric is that too many councils take far too long to make decisions about development applications. He said that the State average for such decisions had increased to more than 50 days. He referred in particular to Parramatta and Kuring-gai councils. As I am a resident of the Kuring-gai local government area I have followed the debate on this matter, and I am certain that in the Parramatta council area the same issues arise. These are not easy issues, but at the heart of it all is the right of local communities and their local councils to have a valid say in what occurs in their local communities.
If councils do not act in a timely manner or do not attempt to make hard decisions and matters are continually referred to the Land and Environment Court—which is another allegation—the problem should be resolved by councils being denied the right to make such decision, by creating so-called planning assessment panels to effectively take away some powers from councils, by allowing the Minister to step in. It is time that we went back to some of the fundamentals and define the roles of local government and the State Government within the whole process.
I discovered an interesting letter from the South Australian chapter of the Royal Australian Institute of Architects that was addressed to the Minister for Urban Development and Planning in 2004. It is interesting because South Australia is regarded as a State that, because of its strategic development, is getting on and doing things. I suspect that South Australia faced some of the same issues that have arisen in New South Wales. The tone of this letter is in stark contrast to the tone of confrontation and frustration expressed in correspondence to the Government from the Council of Social Service of New South Wales, Local Government Association, Housing Industry Association and others. The letter refers to the concept of assessment panels and the way forward to create a better strategic planning system. With regard to the Government implementing recommendations the letter stated:
… the RAIA supports the provisions … to implement recommendations … to improve the South Australian planning system by de-politicising the structure and operation of development assessment approval processes.
We believe that the enhanced role of elected members and council in setting clear and appropriate policy directions for their areas, together with the introduction of regional and/or council development assessment panels as proposed in the Bill will provide more certainty for applicants and the community.
Honourable members should note the concept of enhancing the role of elected members and councils in setting clear and appropriate policy directions. New South Wales has embraced councils setting appropriate policy directions, always being mindful of the desire of their local communities. How do councils determine the desire of local communities? They place development control plans on exhibition. My colleague the honourable member for North Shore told me that North Sydney Council goes to great lengths to involve the community in consultation in an attempt to develop a policy regime for the council. That is the concept spoken about in South Australia. The Royal Australian Institute of Architects then said this—and I think it is good advice for the New South Wales Government:
Policy making is a political process; development assessment is a quasi-judicial process. Good development comes from good policy where the aspirations of the community are embodied in a plan for that community and where assessment against that plan is carried out objectively, independently and judiciously. The shift in emphasis for local government from assessment to policy is a monumental shift which will have economic, cultural and environmental benefits for this State. …
The proposed amendments to the [South Australian] Development Act, to establish clear and effective policies and processes for planning and development and effective and efficient implementation, will address problems with planning and development assessment.
Contrast that concept with what we have heard from the Minister for Planning on this bill. He refers to tardy and inefficient councils—basically putting all responsibility on councils for what he calls untimely approval of development applications. The Minister spoke in one of his press releases about approval times for development applications blowing out. If so, rather than criticising the council and then seeking to take away its powers, perhaps it is time the Minister paused and reviewed the system. I am certain the broader property development industry would want that, and I am sure that is what the New South Wales Urban Taskforce wants.
The Opposition also wants good strategic planning in this State. Unfortunately our environmental planning and assessment legislation is not a strategic planning document. It is based on land use, and therefore is derived from a source very much different from strategic plans. Most of this State's strategic plans derive not from planning documents but from instruments such as State environment planning policies, which are largely established without embodying a role for even the Parliament.
Would it not be better if councils had a role in setting policy? Some councils have tried that. Ku-ring-gai council has tried to embody in its development control plans policies that are relevant to the Ku-ring-gai community, but that has not met with the approval of this Minister. So what is his proposal? Effectively, if the Minister says a council's performance is unsatisfactory, he will take power from that council. I ask honourable members to weigh what we can learn from the South Australian system with the reality of what the Minister is trying to do in New South Wales—"Either do what I say, or you cannot do it at all." That is not the way forward for councils and local communities.
Why is there so much objection to the bill from local government? It is because councils no longer trust this Government, and this Minister in particular, who are so determined to get their own way on their directions and their approach to their strategic plans that they will do so at the cost of local communities. But local communities and councils will not wear that attitude to planning. The Opposition will give voice to those concerns. We too want good and effective planning, but we want it to be achieved in co-operation with councils and local communities. That is what we are standing for today.
The New South Wales Urban Taskforce today put out a press release criticising the Opposition for its stand. So be it. We want to be able to work with that task force as well—because I hope we would all share some common goals, such as more affordable housing and a number of other issues I raised in the House this morning. We would not necessarily have more affordable housing and more affordable land if we were to go along with this proposal to divert special infrastructure funds into growth centres.
I would be the first to acknowledge that the price one pays for development is that of providing more infrastructure. It therefore comes down to weighing up who will pay for that infrastructure. Is that to be an obligation solely borne by the government, and funded from taxes? Or is it a cost that should be borne by developers? If the cost of establishing infrastructure in specific areas is to be borne by developers, that will be passed on in an increase in the cost of land in growth centres. How will the Government achieve some of its other stated objectives—affordable housing and affordable land? In fact, the Government is shifting the whole of the onus and responsibility for infrastructure provision onto developers. Though developers may well reap the benefits of some developments, such developments are in the broader interests of the State. We must have more growth, and we need development in growth centres. I do not argue against that—far from it! I am known as one who says that development is fundamental to the creation of jobs and underpins our economy. I suspect that that position will be in absolute contrast to the stance taken by the Greens on the bill. So be it. Ultimately, development is fundamental to ongoing growth in this State.
There may well be a role and place for planning assessment panels in the longer term. Certainly where the Independent Commission Against Corruption has identified corruption in the actions of a council, the Minister may be justified in appointing a planning administrator—a concept not completely foreign to the planning process in New South Wales, as administrators have been appointed from time to time—but not because the Minister merely says that a council's performance is unsatisfactory, especially as the Minister has not sought in this legislation to define what he means by unsatisfactory. The bill gives the Minister far too much unfettered power. That concern has been expressed to Opposition members by a number of organisations that have become aware of the existence of the bill.
It has come as a great shock to some key organisations—such as the Local Government Association and the Housing Industry Association—that the bill is before the House today. The Government said in 2004 that it would do better on strategic planning. Last year Minister Sartor made further noises about the directions strategic planning would take. But the bill was introduced into the lower House only last week. Though the Opposition was briefed, apparently very few key interest groups were made aware of its content. One cannot be other than suspicious of a Government that, at 3.30 p.m., interrupts a private members' afternoon to bring on the debate on this bill. That denotes a sense of urgency.
Perhaps the Government hopes that the community will not become familiar with the contents of the bill, but that will not happen, because the Opposition will ensure that at every turn people are well aware of what is proposed in the bill. We certainly will take note of how the crossbenchers vote. The bill is the difference between support for local communities and support for local governments, or going along with the Minister, who will be able to take specific powers from local councils, which will have no right of appeal. The bill provides that a council acting in an unsatisfactory manner on approvals is a subjective matter that is entirely in the hands of the Minister, which would give him too much power. The loss of appeal rights to amend or make plans under section 94 is inappropriate.
We are concerned about the impact of the proposed special infrastructure funds on growth centres. The legislation provides that the money need not be spent in growth centres only. The Government could claim that as a consequence of a growth centre a road in another place may be relevant, but the fact is that the funds could be spent anywhere. The scope for spending the special infrastructure funds is far too broad. The Minister should rethink it. If it is about shifting the provision of basic infrastructure in growth areas from what traditionally has been the responsibility of government onto the developer, I can assure honourable members that it will not be the developers or individual house builders who will bear that cost. Ultimately the cost will be borne by those who purchase the land and those who build houses.
There is no other way around it. It seems absolutely at odds with what the Government has said about affordable housing and about making land more affordable for the people of New South Wales. The Opposition will not support the bill. At this stage we have not been privy to amendments from any groups, but it is most unlikely that we will support any amendments.
Ms SYLVIA HALE [4.02 p.m.]: The Greens are delighted to join with the Opposition in opposing this bill, and in doing so we would be joined by almost every affected group throughout the broader community. In an email to a member of this House, which has been provided to me, the Minister maintained he had consulted widely among groups including the Local Government and Shires Associations, a number of councils, the Property Council, the Urban Taskforce and the Housing Industry Association. Yet at the crossbenchers' briefing on the bill on Tuesday, when I asked what community groups had been consulted I was first given a list, and when I asked whether they had been consulted or briefed I was told they had not been consulted but they had been briefed only. Nothing other than briefing had occurred.
The difference between "consulting" and "briefing" is that in briefing one calls together a group of people after the event to tell them exactly what has been decided. Legislation is drawn up and it is presented as a fait accompli. But consulting with groups involves asking their opinion, taking their views into account, and attempting to accommodate their views. Alice Spitzer, Deputy Director General of the Department of Planning, said specifically that no-one had been consulted. Therefore I find it astonishing that Veronica Young, a policy adviser in the Minister's office, should write to a member of this House saying that prior to introducing the bill the Minister consulted with certain groups.
That is an outright misrepresentation of the facts. I was so astonished when I read the list that this afternoon I endeavoured to ring a number of the groups. I started with the Local Government and Shires Associations and got as far as the Housing Industry of Australia—two groups that do not agree on many issues—and both of them denied having been consulted. That is hardly an auspicious start; it indicates the Minister's arrogance and determination to push through regardless. The fact that this debate was called on this afternoon despite assurances this morning that we would not debate it today is indicative of the Government's attitude and the contempt with which it treats not only this House but the community as a whole. That arrogance, that lack of accountability, that "I don't care, we don't care, you'll just like it or lump it" attitude permeates the entire bill.
Many aspects of the bill are abhorrent. One is the stripping away of the appeal rights on development levies, the imposition of section 94 contributions, and a whole range of other issues. The elimination of the right to appeal seems to be the epitome of arrogance, which runs contrary to many of the fundamental principles upon which a democratic government is based. They are denying access to the courts.
The Hon. Henry Tsang: To the developer.
Ms SYLVIA HALE: To the developer and to councils.
The Hon. Henry Tsang: To the developer.
Ms SYLVIA HALE: It is a matter of principle. I do not care who it is. Everybody should have the right to appeal to the court. As a matter of principle everybody should have the right to seek legal redress against a government that exceeds its powers.
The Hon. Rick Colless: Strip them of your preferences.
Ms SYLVIA HALE: It is very tempting. I wish it were up to me.
The Hon. Rick Colless: Do it!
Ms SYLVIA HALE: It is not up to me to determine for other people where their preferences go.
The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! The member will address her comments to the Chair.
Ms SYLVIA HALE: The bill is a combination of three years of relentless attacks upon local government and local democracy in this State. We have a consistent pattern of cost shifting onto local government; the capping of rates, which starves councils of their ability to provide services to their constituents; the denying of any GST revenue to councils; and the travesty of forced amalgamations, which have not worked well. Forced amalgamations have been extraordinarily costly to local government. The assumption that merely by jamming things together suddenly you will get a more efficient or better outcome has been proved false.
We have had a whole suite of planning reforms, whether it be the local environmental plan template, the attempt to impose uniform definitions across the State regardless of the difference in topography, demography or history of an area, and amendments to the Environment Planning and Assessment Act in the middle of last year, which introduced in part 3A, the contents of critical and major infrastructure, and the circumventing of all forms of community and environmental consultation.
We have had the introduction of the metropolitan strategy, which I believe is anything but a strategy, because there have been no benchmarks, no time lines, no way of measuring the success or otherwise of the goals, and there been no infrastructure plan put in place. This is yet another amendment of the Environmental Planning and Assessment Act. No sooner had the ink dried on the last round of amendments than there were new ones designed to transfer even more power to the Minister for Planning. During the second reading stage in the lower House, the honourable member for Miranda stated:
These reforms are aimed at transforming the New South Wales planning system from a process-driven approach to an outcomes-focused approach.
Indeed he is right. The outcomes-focused approach is managerial speak for riding roughshod over democratic processes. The Greens have a whole series of amendments that will be circulated, but basically we believe that the bill is beyond repair. I believe the bill is not able to be salvaged as a whole because of the inclusion of sections that remove the powers of councils to determine development applications, the stripping away of the rights of appeal and the Minister's powers to impose, amend, repeal or remove section 94 plans as well as similar powers in relation to development control plans.
The Greens recognise the need to fund infrastructure provision, and we are not opposed to taxes and levies for infrastructure, but we do agree that this has to be done in an equitable way, which means that the costs need to be spread across generations. It has taken this State many years to pay off the Sydney Harbour Bridge, for example, but it was funded through State debt. That means that not only this generation but past generations who worked to benefit from those major undertakings have all contributed to it over time. To attempt to impose the cost of infrastructure provision on one group in the community, which in this case is basically the residential sector, is inherently unfair. It is also unfair because of the way in which levies work. The industrial, commercial and retail activities that equally will benefit from the provision of this infrastructure will not be liable to pay any of the levies. I believe that is inherently wrong, unfair and inequitable.
Government debt is obviously the best way to pay for the provision of infrastructure. It is the fairest way. Governments are able to borrow money at the least cost because the loan can be spread over a number of years. We believe that the mechanisms for funding the development of infrastructure provision in this bill are inherently misguided. One of the results of that will be that, to get the Government's plans through, there will be an undermining of the powers of local government. Of course, there is a second element of the bill, which is about pandering to large developers by the fast-tracking development applications. There have been numerous approaches to my office from people who are concerned about aspects of this bill. From right across the political spectrum there have been complaints and concerns about the bill. I received one this afternoon from the Planning Institute of Australia which states:
… the Bill does not preclude the Minister from declaring special contributions areas anywhere across the state of NSW, or indeed across the whole of the state of NSW. While the PIA NSW supports in principle the levying of contributions to ensure the provision of essential infrastructure, we are concerned that this power has the potential to become a de-facto tax on new development which could adversely impact on housing affordability.
The Planning Institute recommends that the bill be amended to clearly define those areas that can be declared to be a special contributions area, and it suggests that this could be limited to the growth centres. I do not necessarily agree with that position, but those sorts of views should have been taken into account. There should have been a discussion of the various options and a discussion among the groups that would be most affected, such as planning professionals, councils, the Property Council of Australia, and the Housing Industry Association.
One would expect that if a significant measure such as infrastructure contributions is embarked upon, at least it would be accompanied by a significant analysis of the debate and a summing up of the pros and cons so that, rather than there being an extraordinarily heavy-handed imposition by the Government of a particular measure, there would have been the opportunity to assess the implications. Significantly, although councils are required to prepare and publicly exhibit for comment and submission section 94 plans, and although any levies that are raised with regard to section 94 are subject to appeal by the relevant parties, none of these provisions will apply to the Minister. He can prepare and impose a section 94 plan but there is no way he is required to be answerable for the contents of that plan. It will not be subject to public submission or comment. It will simply be imposed upon a council.
There is considerable debate as to whether this will be a benefit or disadvantage to the larger developers. The suggestion is that the Minister will use the opportunity to reduce the level of section 94 contributions. If that happens, the people who will suffer will be the residents of a community. It is one thing to scoff at section 94 and say it is used for museums, art galleries and parks, et cetera, but if we are moving people into communities that do not have that type of facility, presumably we should try to do more for them than merely provide them with houses; or at least we should be interested in providing adequate libraries and adequate recreational facilities—all those things that a community expects of local government and which local government often is able to afford only through its section 94 plan.
When local government authorities prepare such a plan, they indicate the purposes to which it will be put. I believe the Minister may regard this legislation as a backdoor way of doing a favour for the large development lobby by reducing its section 94 contributions. The concern of the Council of Social Service of New South Wales is that that will be an opportunity to reduce the level of section 94 contributions and the level of amenity that councils are able to provide for their residents. Of course the Property Council of Australia will push to have the contributions reduced. Previously I said that what is wrong with the proposal is the absence of transparency in the process, the lack of any requirement that the Minister should prepare and exhibit a contributions plan. The final insult is that an applicant is unable to appeal against a special infrastructure contribution. I do not care whether it is the big end of town or the small end of town; inherently people should be able to appeal the imposition of a levy. If they win or lose well and good, but at least they should have that right.
The curtailment of the section 94 contributions plan could seriously undermine the ability of a council to fund the provision of essential services, such as open space, child care, libraries and community centres. Everyone is aware of the shortage of child care services and everyone would be aware of the quality of child care that is provided by councils, in contrast to that provided by many private enterprises. The bill represents an attack on many aspects of the standard of living and on community expectations about what constitutes a reasonable provision of services. The right of appeal against the imposition of all conditions of development consent should be maintained for both applicants and councils, particularly when it relates to section 94 contributions.
I turn now to the making, amending and revoking of development control plans [DCPs]. Honourable members would remember that last July the Government amended the Environmental Planning and Assessment Act to provide that only one development control plan could apply to any one parcel of land. After a council has carefully and conscientiously developed a DCP, put it out for public comment and submission, and then put it into effect knowing that it is the only development control plan that will apply to that site, it is reprehensible that the Government is now saying the Minister has the potential power to step in and overturn the entire process. If the Minister is to have that power at the very least he should clearly define the criteria that are to be used when directing a council to make, amend or revoke a DCP.
That is the Government's authoritarian, autocratic, "no-one will challenge" approach to planning. At the very least it is reasonable to expect that the criteria by which a DCP will be found to be adequate or inadequate needs to be spelled out. As councils are required to adhere to the current regulations in making, amending or revoking a DCP, so should the Minister be required, including the requirement that the draft DCP should be publicly exhibited. That is the very least that should be expected. Once again, it is appropriate that both applicants and councils should retain a right of appeal to the court in respect of the Minister's decision in relation to a DCP.
The Government now proposes to establish planning and advisory panels. It is probably preferable to have a panel rather than an administrator, but to suggest that a panel would be able to make a better decision than would an elected council is inherently flawed. Presumably the panels will not be full time. In fact, the Minister in his second reading speech indicated that a panel might not do all the council's planning work and might determine only a few of all the development applications. Presumably the panels will determine applications when the Minister wants to do a favour for a mate or ensure an outcome. Obviously it is easier to heavy three people than it is to heavy an entire council.
We must remember that part-time members of those panels will spend the bulk of their time working within the industry. It is the industry to which they owe their long-term jobs and long-term careers and futures. It is the industry as a whole to which they owe their livelihoods. To assume that the members of the panel will be able to shake off all those ongoing conflicts of interest and produce decisions that do not jeopardise their future employment is to be off in cloud-cuckoo land. Members of a panel are even more subject to undue and inappropriate pressures from the development industry than would be an elected council. Again, there are no criteria for when a panel would be created, there is no accountability to the council or ratepayers, yet councils are still expected to come up with the money and resources for the panels.
Are the panels to determine only a few or a lot of development applications? Presumably it will be up to the Minister to set out what the panels are to do. The councils will have to pay for the panels and provide them with the necessary resources. There is a rather draconian element to the bill under which any council or councillor who is found to obstruct the work of the panels can be subject to a fine, currently of about $1,100. I cannot think of anything more calculated to deter people from running for elected office than the prospect of being fined. To add insult to injury, if a panel determines a development application and gets it wrong, and the applicant appeals to the Land and Environment Court and there are extensive and expensive proceedings as a result, the panel will not have to pick up the costs; the elected council will pay for the errors and mistakes of any panel.
It is inherently unfair, as is most of the bill. Then at the tail end of the bill are the provisions concerning Redfern and Waterloo. I recall that during the inquiry into the activities of the Sydney Harbour Foreshore Authority the foreshore authority maintained it was not responsible for the inappropriate development and overdevelopment that occurred on the foreshore and in Pyrmont that resulted in extraordinarily dense housing and the loss of a great deal of open space and community amenity. Officers from that authority said, "We were not responsible for that, it was the Minister for Planning. We are a separate authority. We might make a recommendation, but it is the Minister that ultimately approves it. You cannot blame us for the errors that have been made." It was a convenient passing of the buck.
That situation has been addressed in this bill. Now the Minister will delegate to the authority the power to approve or refuse developments. But honourable members should bear in mind that the authority is supposed to be self-funding; it is supposed to generate the funds to finance its activities and return a profit to the Government. When one realises that those funds are dependent on its ability to approve something, or sell or zone land, or promote a development, buildings or whatever—the authority essentially is unaccountable to the community—one can see what a travesty of democratic decision-making is being introduced with this bill. It is a complex invitation to a real corruption of the planning process.
The Greens believe that the community about which the Government has the least concern is obviously the community of Redfern. The Government holds a massive amount of land in that area and it will be attempting, through the authority, to sell it off to the highest bidder. In conclusion, so far as I can ascertain, not one interest group has been consulted. I believe, and I agree with the Opposition entirely, perhaps for different reasons, that this bill should be rejected. Of course, numerous amendments will be prepared just in case. If any amendment were to be considered, if it looked as if there was the slightest chance of people approving the bill, the amendment that should be adopted is an amendment to transfer the bill to a committee so there can be public discussion and consultation on its provisions.
It is notable that in this morning's edition of the Sydney Morning Herald even the Property Council of Australia suggested that such a committee be established. There is genuine interest in the nature of the democratic process and also the way in which infrastructure in this State is to be funded. These issues are at the heart of this bill. We should not blithely agree to a bill that so completely rides roughshod over what I believe should be established and inviolable democratic processes.
Reverend the Hon. Dr GORDON MOYES [4.34 p.m.]: I listened carefully to Ms Sylvia Hale's presentation. I usually find her presentations on issues concerning housing and affordability of land to be well researched and she has a great deal of good advice coming to her about that. I thank her for some of the points she has put forward and I will present a differing view on a number of items. The object of this bill, which has come to us in a rather rushed state, is to amend the Environmental Planning and Assessment Act 1979 to provide for contributions for the provision of infrastructure in relation to development within special contributions areas; enable the Minister for Planning to give directions to a council in respect of contributions plans, development control plans and other matters; provide for the establishment of planning assessment panels and the exercise of council's planning functions by those panels and by planning administrators; and amend the Growth Centres (Development Corporations) Act 1974 and the Redfern-Waterloo Authority Act 2004.
Like other honourable members we in the Christian Democratic Party have contemplated these issues at some length and we have consulted a number of organisations to obtain advice on these matters. There is no question that there is a regrettable, seemingly continuous attack on local councils and their powers. We are democratic in our attitude and we believe that local authorities should be given as much support as possible in the work that they do, but we recognise that the Local Government and Shires Associations have for quite some time now been faced with a great many difficulties, including forced amalgamations, a whole raft of planning reforms, the removal of the right of appeal and lack of consultation. I believe the Government stands condemned on a number of these issues.
Even this bill needs a great deal of transparency and accountability, which we do not see in the bill. The centralisation of the powers into the Minister's direct control over local councils is something that we do not encourage. As far as possible the planning of local areas should be pushed down to people involved in the local communities. However, we also recognise that many councils have been negligent in the way they have handled their section 94 contributions. They have made a number of State environmental planning policy decisions that have upset everyone in the community. They have been reluctant to be transparent.
There are inexcusable delays for many people—developers, builders and others—who submit development applications, and the delays bring upon local governments and the shires associations the inevitable retribution that comes from those who get their fingers burned because of those delays, the expensive waste of time and so on. Local government complains there has been lack of sufficient consultation and scrutiny concerning this matter. I can understand that. It just seems to me, however, that the Government has lost patience with many of these things and the way that many councils have behaved. Minister Sartor adopted a swashbuckling attitude in his approach to the desalination plant and other issues—
The Hon. Dr Arthur Chesterfield-Evans: Napoleonic, is the word.
Reverend the Hon. Dr GORDON MOYES: His decision-making approach has provided strong leadership on growth centres and he did a good job in dumping the green overlay that was presented to us some months ago by his predecessor, which caused a great deal of angst amongst people in the north-west and southern sectors. The Minister has now brought upon himself the ire of many councils and other people because it seems that this is another attempt to cut back on local democracy, impose government bureaucracy and build for himself quite a, as the Hon. Dr Arthur Chesterfield-Evans declared, Napoleonic empire which makes him one of the most powerful men in New South Wales. Certainly his powers are equivalent to that of a Premier.
The Christian Democratic Party has listened carefully to a number of professional organisations in this field and we are concerned, as they are, about a number of issues concerning the amendments to the Growth Centres (Development Corporations) Act. We have examined the amendments to the Redfern-Waterloo Authority Act, but I will not speak about them now. My colleague Reverend the Hon. Fred Nile will outline some of the amendments that we believe should be made to the bill.
Urban development in a city like Sydney is absolutely crucial to us all. Organisations such as the Urban Development Institute of Australia—which is committed to seeing good city and urban design and the infrastructure projects that are necessary in large cities—are to be commended for their work. They are making people aware of the reforms in this bill that impact upon the community and ensuring that local councils and others have an opportunity to be involved in the process. I noted the costs that large developers face as a result of slowness and inefficiency in council regions. Rod Fehring, Chief Executive Officer of Delfin Lend Lease, said it is four times more difficult and more expensive to progress a development in New South Wales than it is in any other State of Australia.
Many planning powers are being centralised in the hands of the New South Wales Minister for Planning—just one person. That is serious. We believe reform is necessary and we support some of the bill's provisions. However, local councils must recognise that their handling of section 94 plans and contributions—I understand that about $700 million has been raised for specific infrastructure projects but is yet to be spent—does not help their case one bit. The Christian Democratic Party supports the bill. We will not reject the entire legislation but will seek to improve it by amendment. My colleague Reverend the Hon. Fred Nile will speak to some of those amendments in due course.
Mr IAN COHEN [4.41 p.m.]: From time to time I find myself speaking in this House about monumental planning legislation. Years ago, when Craig Knowles was Minister for Planning, planning bills were rushed through Parliament late at night and the House sat until about 6.00 a.m. That is typical of the Government's handling of legislation; it rides roughshod over communities throughout the State. This bill is no exception. I am saddened that Reverend the Hon. Dr Gordon Moyes does not recognise the Government's mistreatment of communities in New South Wales. I concur with the views of Ms Sylvia Hale, who led for the Greens on this bill, and share her many concerns. This legislation is symptomatic of the Government's hubris. The Government is obsessed with its own power.
A friend recently quoted to me a Chinese saying, "To adequately judge the quality of a person, give them power". The Minister for Planning, Frank Sartor, stands condemned for abusing his office and for causing much angst in the community. I will reflect on some developments that have occurred in my home community, which I hold very dear—I have made no secret of that fact—in the north of New South Wales. The community is under great pressure from developers. The "Mayor of New South Wales", Frank Sartor, has sided firmly with developers and, in many ways, the Environmental Planning and Assessment Amendment Bill facilitates his designs on my home community. I put Labor members on notice: If they attack my community I am quite happy to attack their Government. I am personally offended by Minister Sartor's behaviour. He has lied, attacked leaders in my community and denigrated those who stick to the rules, understand the situation and, dare I say, possess a greater intellect and discernment of the issues than the Minister. Mr Sartor never allows the details to get in the way of a good punch line in the newspapers. He is the great self-aggrandiser.
I join my colleague Sylvia Hale in opposing the Environmental Planning and Assessment Amendment Bill. I will not go through the provisions of the bill as that has been done already, and I commend Ms Sylvia Hale for her work. But I will put a local perspective on the anticipated impact of the bill and outline the reasons why the Government has introduced it. This will require providing some background information spanning some years. On the outskirts of Byron Bay there is a low-key tourist resort comprising 78 small cabins, a restaurant and a bar, a conference room, two swimming pools, a nine-hole golf course, and a tennis court. The cleared area is surrounded by State environmental planning policy [SEPP] 14 wetlands, rainforest and endangered floodplain plant communities. Byron shire's last remaining nesting area for the threatened little tern, beach thick knee and pied oystercatcher, as well as a variety of other shorebirds, is right where residents of this resort access the beach.
The entire site is a flood storage area for the Belongil Creek and, with global warming, is being eroded on one side by the sea and on another by the estuary. It is not a good site for a major development. It used to be known as the old racecourse site and I have seen many photographs that show the entire site underwater. But evidence such as that has little impact when developers and the Minister for Planning get together.
In the early 1990s Club Med attempted to build a 416-room resort for 928 guests on the site. At that time the community vigorously opposed the development. When the then council approved the development the community took the council to court and established that it had no legal right to approve the development as there had not been proper consideration of threatened species. In early 2002 Melbourne development company Becton bought the site. SEPP 71 commenced in November 2002. On 18 November 2002 the Department of Infrastructure, Planning and Natural Resources [DIPNR] hosted a planning meeting between Becton and various government agencies to progress preparation of a master plan for the site. The master plan was subsequently prepared and exhibited on 2 July 2003.
Becton proposed to build 379 holiday homes, a retail centre, a hotel and a sewage treatment plant on the outskirts of Byron Bay. It was proposed to subdivide and strata-title this development into individual houses. Another lot was to be held in reserve for some unspecified future development. This development was designed to accommodate 1,866 people at peak periods. In the 2001 census the population of Byron Bay was 7,000 people. Becton's proposal thus represented a 27 per cent increase in the population of Byron Bay from just one development. Under SEPP 71, master plans are required only for large subdivisions within a residential or rural residential zone. Yet the Becton site is zoned for tourism development and residential use is expressly prohibited. On 11 July 2003 Byron Shire Council pointed this out to DIPNR, and told it:
Council is of the opinion that a Masterplan under SEPP71 is not required.
DIPNR ignored the council, preferring to rely upon highly dubious legal advice from Becton that a master plan was required. The argument went along the lines of, "Well, it looks like a residential development so a master plan must be required." DIPNR did not bother to get its own legal advice because it thought it was a good idea to prepare a master plan. DIPNR went ahead and exhibited the master plan from 31 July to 15 September 2003.
DIPNR and the Minister had no legal right to accept or exhibit Becton's master plan in the first place. During the exhibition period there was considerable community angst about the proposal. This was reflected in two rallies. One rally was attended by more than 1,000 people and a sing-a-long on the beach attracted more than 2,000 people. During the public exhibition period more than 3,800 submissions were forwarded to the department. Of these, only nine supported the proposed development. Both the department and the Minister refused to consult with the community.
Towards the end of the exhibition period the community became aware that the master plan was legally invalid and should never have been exhibited in the first place, with one group calling on the Minister to publicly apologise and reimburse people for the considerable time and resources they wasted opposing the development. On 30 September Byron shire councillors resolved "That council is of the opinion that a master plan is not required." DIPNR was informed of this on 1 October, with council again writing to DIPNR on 18 December to reiterate this fact. Soon after the exhibition period lapsed, DIPNR advised its Minister that Byron council would be the consent authority for any subsequent development applications and that Becton "have indicated a preference for the Minister to be the consent authority for this development". Meanwhile DIPNR continued its attempts to allow the Minister to determine Becton's master plan. The department did finally obtain its own advice on the legality of Becton's master plan on 2 October 2003. Without referring to this on 28 October 2003, Robert Black from DIPNR wrote:
The proposed development site is zoned 2(t) (Tourist Area Zone) and 7(f1) (Coastal Land Zone) under the Byron Shire LEP 1988.
Normally, development in these zones would not require the need to prepare a master plan, however, the applicant has obtained legal advice that directs a broad interpretation of the term "residential" in SEPP 71. The department has accepted this view for the time being.
It is the department's view that, even if a master plan were not legally required under SEPP 71, this site and the proposal are of a scale and potential impact which warrant a thorough review through a master plan process …
In February the Australian Financial Review reported:
Melbourne property developer Becton has made its first political donation outside of Victoria, spending more than $30,000 courting members of the Carr Government at lunch as it processed plans for a $250 million, 354-dwelling beachfront development in trendy Byron Bay …
Managing director Hamish Macdonald said … he had sat at Premier Bob Carr's table at the function …
He would not say which other Labor Party members attended the lunch.
Becton is a major donor to both the Labor and Liberal parties, giving more than $220,000 to Labor in Victoria and NSW since 1998
SEPP 71 was amended on 12 March 2004, including the addition of clause 9 (3) (a), and that basically meant that Becton's development application could be classed as "significant coastal development", could come under the ambit of SEPP 71 and be determined by the Minister rather than council. The Minister, believing that he could now sideline council at the next stage and determine Becton's development application, began to indicate that he was going to give up on his attempt to determine Becton's master plan. By 24 March 2004 the Minister's chief of staff, Mr Levins, was reported in the Northern Star as saying:
… it was "within the realms of possibility" that the whole master plan process could be dropped in favour of handling the issue back, 4000 submissions included, to Byron Shire council.
The Minister made up his mind that he could not get away with determining Becton's master plan and established an alternative process which he considered would allow him to determine Becton's development application, but it still took him until Monday 21 June 2004 to finally refuse it. The Minister did not admit that the master plan was legally invalid. His department was more forthright, and stated in its report:
Given the site's zoning for tourism SEPP 71 does not apply and a master plan is not required.
The draft master plan should not be adopted. The proposal is likely prohibited and the draft master plan is not a valid document under the provisions of SEPP 71.
This was presumably the belated legal advice that DIPNR obtained in October, more than eight months earlier. Because of the stuffing around by the Minister and the department and legislative change it took this Government and the Minister nine months after the public exhibition finished to refuse a legally invalid master plan. It was more than 18 months since Becton discussed its proposed master plan with DIPNR in November 2002. This master plan should never have been prepared, accepted or exhibited in the first place. And this Government and this Minister have the hide to attack councils for taking more than 40 days to process legally valid development applications! More than that, this small-minded Minister, obsessed with his own power and in cahoots with developers like Becton, complains if councillors cannot process applications within 40 days! What about the time that has been wasted whilst he has attempted to get his mate Becton on deck in my community?
Between July and October 2004 council hosted three negotiations between council, Becton and community groups in an attempt to achieve resolution of the future development of the site. Those talks were successful in reaching substantial agreement over the area of the site that could be developed, which was largely established by applying constraints identified by various agencies and legislation. However, the talks were abruptly halted when Becton flatly refused to negotiate over the scale and type of development it could undertake within the area.
That was not surprising. Becton already had the New South Wales Government change the legislation to suit its needs, so one could expect that the Government would give Becton what it wanted. Council had first resolved to prepare a development control plan [DCP] for the Becton site on 24 July 1990. This had been again identified as an option by council staff in September 2003. Out of frustration, a local community group engaged the services of a professional planner to prepare a draft DCP for council's consideration. This was presented to council on 31 October 2004. Council staff consulted with Becton and re-wrote the DCP to satisfy Becton's requirements. On 14 December councillors resolved to make various amendments to the draft DCP and exhibit it. Becton was not happy that the proposal was to limit its development to a total of 250 bedrooms.
To circumvent Byron Shire Council and the local community, on 22 December 2004 Becton lodged a new development application with DIPNR. It did not bother to show it to Byron council. It is not known why, but with apparent ministerial support and an amended SEPP 71, DIPNR was not directed to immediately accept it. Maybe, after the master plan fiasco, the DIPNR needed to first check the legality of doing so. On 24 December 2004 staff presented councillors with the final draft DCP and advised that it would soon go on exhibition. On the same day Becton commenced proceedings in the Land and Environment Court against the Minister and council seeking a declaration that the Minister be the consent authority for its DA. The DCP was exhibited from 7 January to 18 February. Council adopted a final DCP for the site in April 2005. The DCP effectively gave certainty to the community and any future developers as to the maximum level of development that could be undertaken on the site, and what measures were required to safeguard the environmental values of the area.
On 27 May 2005 the Government introduced new planning legislation: SEPP, Major Projects [Schedule 1] Part 3A projects—Classes of Development. In the belief that this legislation finally guaranteed that the Minister would determine its development application, Becton gave up on its court case, and in July 2005 Becton lodged a new development application with the State Government. On 29 September 2005 Minister Sartor visited Byron and had a very brief meeting with community representatives and then a site inspection with council and Becton. Minister Sartor said he wanted to give council and Becton one last chance to reach an agreement. Council was finally provided a copy of the July DA and, given that it was only for stage one of the development of the site, found that it could not assess it.
Becton had the added incentive of knowing that if council would not agree to its development there and then, finally its wish was going to be granted and the Minister would take control of its DA. On 20 December 2005 Minister Sartor announced that he was going to determine Becton's development application. When council resolved to ask the Minister to clarify the legal basis for his decision, and to ask for DIPNR to implement a community consultation process over the application, the Minister went on the attack, stating on 27 January 2006:
The protracted dithering over this proposal for many years when the land has been zoned for tourism for a decade is an indictment of Byron Council and its handling of planning matters.
That is an extraordinary assertion. Since November 2002, for more than three years, Becton had, with the connivance of this Government, been trying to get this Government to approve its development. During that time it had submitted a master plan and two development applications to be determined by the Minister for Planning. The only development application submitted to council was for a rock wall. Council's attempts to negotiate an acceptable level of development for the site was continually thwarted by Becton's belief that it could run to the Minister to get what it wanted.
Council has expended considerable resources in assessing a master plan that should never have been exhibited, helping defend court cases brought by Becton against the State Government, defending the coastal policy against Becton's attempts to build a rock wall along the beach, and finalising a development control plan for the site. On Tuesday 28 February Minister Sartor introduced the bill we are now debating to empower him to direct a council to amend or revoke a development control plan, and, if they refuse to do his bidding, for him to amend or revoke it himself. His rationale is to enable him to override onerous and inappropriate controls established by development control plans and to provide greater certainty for communities and developers. On that Friday Minister Sartor exhibited Becton's development application for a staged development of a 431-bedroom resort on the outskirts of Byron Bay. That is bigger than the Club Med proposal for the site and almost twice as big as the council's development control plan allows.
Pursuant to sessional orders business interrupted. The House continued to sit.
Mr IAN COHEN: It is worth noting that Minister Sartor has now insisted that Becton identify its full development for the site so that he can assess it—though he would not require that for council. It is quite obvious that once again this Government is introducing legislation specifically aimed at doing over small communities—in this instance, the Byron community, my community—to give Becton exactly what it wants. The only certainty this bill provides to the community of Byron Bay is that no matter what they do to negotiate with developers, and what limits they set for development, the New South Wales Australian Labor Party is prepared to ride roughshod over them to give developers exactly what they want.
One of the saddest aspects of this legislation appears to be the delusion of Minister Sartor that somehow he can resurrect the economy of New South Wales by driving land development through legislation like this. If his thinking is so bizarre that he believes he can save the State, despite the bad form of the New South Wales Labor Government over 10 years, by introducing developer-friendly legislation, running roughshod over communities like my home community, and thinks he can get away with that, I say, "You have got another think coming, Mr Sartor. You have really overstepped the mark here." I have all too often under this Labor Government seen planning issues take a turn directly in favour of the developer. This legislation shows quite clearly that the Government has lost contact with the communities it is supposed to represent, that it does not give a damn about the ordinary people in our community, and is obviously hell-bent on running in a direction that will facilitate developers, like Becton, which give substantial amounts of money to swell the coffers of the Australian Labor Party, in this case in Victoria and New South Wales.
Before I conclude my speech, I would commend my good friend Dailan Pugh, who has been involved with the Byron Environment and Conservation Organisation, or BEACON, a local environment group. Dailan has worked tirelessly on researching the issues and otherwise being involved in the preparation of this speech, which goes into the detail, looks at the history, and properly assesses the situation. I do not believe that DIPNR, with all its responsibilities across the State, will even scratch the surface on the detail needed to properly assess a development such as this. Once again the State Government is relying on and trusting a developer to provide it with relevant information. As a result, we see very inappropriate, ugly, environmentally damaging, socially disruptive developments being forced on local communities—in a bid, somehow, to try to establish the economic credibility of a failing Labor Government. I join with my other Green members and others in this House in opposing the bill. I move:
That the question be amended by omitting the words "now read a second time" and inserting instead "referred to General Purpose Standing Committee No. 4 for inquiry and report".
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.05 p.m.]: The great English architect Sir Christopher Wren has as his epitaph:
Reader, if you seek his monument look about you.
He is, of course, buried in St Paul's Cathedral, of which he was the architect. And a very impressive cathedral it is! Frank Sartor was Lord Mayor of Sydney. I think he was quite a good mayor. He started off as director of the Public Accounts Committee. He was not very popular with the Greiner Government because of his independent views. He continued in that position until a Labor Government came in. But he was not very popular with that government either because of his independent views. Then he was elected to Sydney City Council as the head of the council's largest group—only to be denied the office of Lord Mayor by a coalition of Liberal and Labor councillors! So Frank Sartor's independent stance lasted for quite a long time. A number of buildings and works I think stand as monuments to Frank Sartor as Lord Mayor of Sydney: the refurbishment of the Capitol Theatre; the Boy Charlton Pool; the basketball court and recreation area in The Rocks; Cook and Phillip Park, which has a quite nice swimming pool, although an unfortunate square on top; and the City Recital Hall. Some of those works were indeed thanks to Frank Sartor, as was the use of more pavement dining, which has made the city more user friendly. Those are part of his legacy.
So Frank Sartor, while being somewhat autocratic in style—one might say increasingly autocratic in style—does demonstrate that he has the intention of improving our society, that he has fire in his belly and that he has a willingness to fight to achieve his goals. That must be admired. However, we must be conscious of the fact that Frank Sartor is now a Minister with responsibility for a great number of portfolios. He is Minister for Planning for the whole of New South Wales. He dabbles in many planning areas, certainly State significant developments, as they are defined. When the Government wishes to take over an area from a local council it declares that area a State significant development—presumably bringing it under the administration of Frank Sartor. The Honeysuckle development in Newcastle, I think, is most unfortunate: it is poorly served by roads; it is very large, and blocks the view of the river to everybody other than those living in it; and it has led to attempts to get rid of the railway, which is a very important mode of transport to bring people into the centre of Newcastle.
As well as being Minister for Planning for the whole State, Frank Sartor is of course Minister for Redfern Waterloo—an extremely large area that extends, more or less, from Cleveland Street to the airport and encompasses everything in between. And, of course, he is Minister Assisting the Minister for Health (Cancer). He manages these vast portfolio responsibilities with considerable energy. However, I have been trying to get Minister Sartor to read the sex services premises guidelines. Those guidelines, which were supposed to become available in 2004, were devised to aid councils in planning regarding sex services premises. They were promised to be consistent with the decriminalisation of prostitution in 1995. However, the guidelines are still not available.
A freedom of information application was made that resulted in the release of one copy of the report. No electronic copies have been released for circulation. Councils that want to submit planning applications are facing a deadline. The guidelines prepared by the working party are not available publicly, nor are they available to the councils for whom they were written and who would benefit from them. There is a logjam in Frank Sartor's office. The bill aims to prevent logjams and for the Minister instead to deal with the matter expeditiously, and that gives rise to conflict. It is all very well to talk about the Minister and the powers vested in him. He is a well-intentioned man, But when we pass legislation in this House we do not pass legislation that says, "Frank Sartor may do this." We pass legislation that says, "The Minister for Planning may do this." The person with responsibility for the Planning portfolio may be different tomorrow if we have another Cabinet reshuffle. The bill gives a large amount of power to Minister Sartor but it has very little transparency, which I am very interested in. I am merely trying to have the sex services guidelines released. That process should have been transparent.
A case has been made about the effect of large amounts of money in elections in small areas. We see the alternation of developer dummy candidates with lots of money who pretend to be independent and pro-resident, but when they are elected they approve ugly, appalling and ill-thought-out developments. That certainly happens in my area. Residents then get together to form resident action groups, achieve a majority on council, and then maintain their enthusiasm and energy for a couple of terms. But then the cycle repeats itself. That has been a problem. The idea that plans have to be approved in a certain time is beloved by property developers. Major property developers in the Newcastle region rate councils by how quickly they approve applications, which usually involve significant rezoning resulting in huge traffic implications. Their view is that if applications are not approved within 21 days, the council involved is hopeless. One could be forgiven for thinking that the developers had money on the short-term money market and every day's delay is costing them a fortune and stopping the march of progress. But considerable time is taken up by councils assessing the effect of developments. Councils that are most careful in sensibly considering the needs of their residents might take longer than others. Some councils may have an overall planning framework and try to fit a development application into that plan to reconcile what may not have been reconcilable; the development application may be totally at variance with the plan conceived by council.
Some years ago planning was more or less the domain of the public sector, but wages being what they, are councils now have to compete for planners, who can now make much more money working for a developer. Councils are battling to attract good planning staff to evaluate developments in rapid time, and when that does not happen they are roundly criticised. For whose convenience are we talking? Are we talking about the community or are we talking about the developer, who wants the application approved in the minimum time, and if it is not, the developer will go to the Minister?
Some inner-city councils really should have urban consolidation, but they have decided they want the amenity for existing residents. They will not do anything to allow increased density, which pushes the city towards the west to accommodate people who ought to go to other areas that may not be as well served by public transport. The Government should provide a plan to force councils to accept their share of an overall vision. But the Government does not have an overall plan to give councils any guidelines. It does not consider systematically the overall development of the city. The Government has the developer's court, the Land and Environment Court. It is ironic that when Frank Sartor was Lord Mayor of Sydney he produced a glossy booklet about the anomalies of the Land and Environment Court and its capitulation to developers. Nowadays he does not want local councils to stand in the way of developments. Frank Sartor says, "I will not do this in many cases. I will do this only in specific cases. I will appoint panels so that I will not be involved. The panels will be transparent."
The word "independent" is somewhat threatened. Some people in politics who claim to be independent are highly beholden to one political party or another, but they do not want to admit it. When I suggested in this House that people who are members of political parties and who stand for local council should declare that fact on their ballot paper, there was an absolute cacophony in this Chamber. I was yelled and screamed at because, some members said, the public did not have the right to know, that people have the right to have their political allegiances kept private.
It is extremely difficult for people who have problems with builders to get independent advice from architects and other builders stating that their job is a dud. People who assess buildings and building applications are reluctant to say that a building is totally dodgy, because their future employment is in the industry. The assessment of dodgy buildings accounts for only a small fraction of their work, but if it were to become a large part of their work, they would become marginalised within the industry. They are scared to give opinions without fear or favour. Environmental impact statements are prepared by independent consultants, but they know that if the environmental impact statement is not advantageous to their proponents, they will not get further work from them. The very old proverb "Who pays the piper calls the tune" comes to mind.
It has been pointed out that section 94 payments have been abused. The argument was made by the Housing Industry Association that section 94 payments have increased markedly as a percentage of the overall cost. Yesterday the association offered to provide me with some figures in that regard but they have not yet arrived. I must say, however, that we did not expect to debate the bill today. The cost of infrastructure is now being sought to be recouped at the time of section 94 payments, and the costs associated with section 94 payments are being passed on to residents. Years ago roads would have been built by governments, probably by the issuing of government bonds paid off at an extremely conducive interest rate—the Government can borrow at the bond rate—over 30 years. But now section 94 payments are paid immediately.
The cost of the payment is passed on to the developer and then the purchasers of residential properties, who are borrowing at a much higher interest rate than that at which the Government borrows. The debt is being transferred to private citizens at a much higher interest rate and the banks are doing very nicely out of this rather rum deal. Thank you very much! I note that the Government has pegged council rates to the Consumer Price Index [CPI]. However, no-one believes that councils' costs have stayed with the CPI. Councils are totally squeezed. They cannot get revenue because of their rate-pegging and they cannot hire staff because private sector wages in planning have increased more than inflation. How will councils obtain funds to provide services that increasingly councils are expected to provide as the State Government withdraws from providing quite a number of services?
The State Government's grants to local government have not increased because the State Government does not undertake borrowing. It has an absurd obsession with debt and it will not take on debt, even if the debt is backed by assets. Everybody knows that if a financial institution is approached for a loan by someone who has assets, the financial institution will agree to lend on the basis of those assets. Conversely, borrowing money for expenditure without collateral assets will soon destroy a credit rating.
The absurdity about the Government's position of not borrowing money and instead squeezing councils for short-term political advantage is making the provision of infrastructure extremely difficult, as is the Government's failure to provide councils with an overall plan. The Government has left local government without the money and without the wherewithal to engage decent planners, but criticises councils for not having planning done in a timely fashion. Worse than that, the Government is imposing regulations on councils while the Minister cherry picks sections that he decides he will override.
The Government's approach is a totally unreasonable treatment of planning in New South Wales. Let us approach problems in a systematic manner instead of acquiescing in the Minister overriding councils in certain cases. The Minister may find that he will have to squeeze more money out of councils in the interests of making ends meet, given the constraints to which I have referred, or he might have to reduce infrastructure contributions to please developers as some type of gift. I am not suggesting there has been any corruption associated with the Minister for Planning, Frank Sartor, personally, but the idea of decisions being made behind closed doors with a total absence of transparency is an absolute travesty.
My view is that if there is more transparency, governance improves as a result of fewer regulatory mechanisms. That has been borne out by the experience of governments throughout the world and an enormous collection of literature. Groups such as Transparency International are involved throughout the world in efforts to increase transparency in government, improve planning and reduce corruption. The group is mainly concentrating on the Third World but I wish it would focus on New South Wales.
The bill will amend the Environmental Planning and Assessment Act to provide for the provision of infrastructure in relation to development within special contributions areas and will enable the Minister for Planning to give directions to a council in respect of contributions plans and development control plans. It will establish planning assessment panels and regulate the exercise of councils' planning functions by the panels and by planning administrators. It is interesting that the Government wants to have panels that it is able to appoint, and that, at that stage, the process will be transparent. However, the point is that if a panel does not do what the Government wants, its members will not be reappointed. The independence and transparency of the proposal is not without its caveats.
Amendments of the Growth Centres (Development Corporations) Act 1974 will permit the Minister to appoint a chief executive of a development corporation and require a corporation to submit an annual statement of business intent. The bill will amend the Redfern-Waterloo Authority Act to permit Crown land to be transferred to the Redfern-Waterloo Authority and to permit the Minister to delegate certain functions. The transfer of power is predicated on the assumption that the Minister, Frank Sartor, will work in his own way. Frank Sartor will be running the show. A change of Minister would be very worrying. I am quite certain that, should there be a Cabinet reshuffle, the bill would not be brought back to Parliament to consider whether a new Minister should have those powers.
Currently section 94 (1) of the Act provides for development contributions to be levied as a condition of development consent when a consent authority is satisfied that development for which development consent is sought will, or is likely to, require the provision of, or increase the demand for, public amenities and public services within the area. Contribution plans are made and revised by councils after being placed on public exhibition for public comment. The procedure by which a council makes a contribution plan can be challenged within three months of the plan coming into effect under new section 94EB (3)
New section 94EAA (1) provides for the Minister to direct a council to approve, amend or repeal a contributions plan in the time and manner specified in the direction. It also provides that the Minister may approve, amend or repeal a contributions plan if the council fails to follow the direction or if the council consents to the Minister making, amending or repealing the plan. As I said, it is, "Minister may" legislation. In other words, it will give more power to the Minister. In each case the making, amending or repealing of the plan by or at the direction of the Minister cannot be the subject of an appeal to the Land and Environment Court under proposed section 94EAA (4).
Under new section 94EAA (4) (a), the validity of the procedure by which such a contribution is made, amended or revoked by or at the direction of the Minister would not be open to judicial review in the Land and Environment Court. However, the validity of the contributions plan will be open to judicial review in the Supreme Court. More significantly, the bill alters the current position whereby, on appeal to the Land and Environment Court by an applicant for development consent, that court may disallow or amend the development contribution condition on the ground of unreasonableness, even if it were determined in accordance with the relevant contributions plan, as provided in new section 94B (3). The bill removes this right to have the reasonableness of the condition reviewed where it is based on a contributions plan made or amended by the Minister, as provided in proposed section 94EAA (4) (b). The Legislation Review Committee has noted:
12. The interference with property rights constituted by the extraction of a sum of money or area of land from private landholders may be justifiable in terms of economic efficiency - on the basis that it internalises the public costs of development by making private beneficiaries pay for the costs of infrastructure. Nonetheless, it is arguable that the removal of a right of appeal on the question of the reasonableness of the contribution required constitutes an interference with personal rights associated with private property.
13. In the absence of any right of appeal, the reasonableness of the contribution in situations where the Minister has been involved in the making of a contributions plan will be entirely in the hands of the consent authority applying the provisions of the plan.
14. Moreover, the removal of the right of appeal is selective. It will remain available where there has been no ministerial involvement in the making or amendment of the particular contributions plan under which the contribution is exacted. Where there has been ministerial involvement, it appears that the right of appeal is removed even in relation to aspects of the plan in relation to which there has been no ministerial involvement.
15. Similarly, under proposed s 94EE(4) & s 94EF, a Ministerial determination of the level and nature of the development contribution that a person is to make as a condition of the grant of development consent cannot be appealed to the Court.
16. The Committee notes that review of the decision by the Supreme Court is not precluded, allowing a determination to be challenged, for example, on the ground that the Minister acted beyond his or her power or failed to accord procedural fairness. On this point, the Minister noted that:
[N]othing in the Bill affects the jurisdiction of the Supreme Court to hear appeals. This means that a person may still have an action to initiate in the Supreme Court, for example, based on a matter of administrative law.
This means that a person may still have an action to initiate in the Supreme Court based, for example, on a matter of administrative law. The Legislation Review Committee concluded:
17. The Committee considers that, in general, all decisions of an administrative nature should be subject to review. However, in some instances, policy considerations may dictate that an appeal is not necessary or practical.
I do not know whether that is code for the fact that the courts take so long that they cannot possibly be made to adjudicate these things. One can only wonder. Some of us think that the legal system works only sometimes. The committee's conclusions also state:
18. The Committee notes that the Bill removes the right to appeal to the Land and Environment Court in respect of the reasonableness of a condition of contributions plan made or amended by the Minister under proposed s 94EAA.
19. The Committee notes that this denial of merits review is to help secure the certainty of funds so that important infrastructure programs can be implemented.
One cannot help but wonder if this is just another instance of "might is right—we need the money". The committee's report states in relation to part 4, division 6, subdivision 4:
21. The Bill allows the Minister to direct a council to impose, in addition to any development contribution condition imposed under s 94 (which, under the amendments is to become known as a local infrastructure contribution), a condition requiring a special infrastructure contribution [proposed s 94EF(1)].
22. On this point the Minister noted:
[special infrastructure contributions] will be collected only when it is reasonable to impose an additional levy because of the extent and urgency of the area's infrastructure requirements…[where] immediate and significant infrastructure expenditure will be required. Special infrastructure contributions will provide the Government with a secure source of funds to provide infrastructure at the right time and in the right sequence.
23. Such a condition could only be imposed in new land release areas and other areas where there will be coordinated growth and development, ie, areas listed in proposed Sch 5A to the EPAA as special contribution areas, initially confined to areas identified as growth centres.
24. The potential interference with personal rights arises from the fact that the Minister's decision on the amount payable is not appellable on the grounds of the unreasonableness of the contribution exacted [proposed s 94EE(4) & s 94EF(6)], whereas, as seen above, under s 94, the applicant can appeal to the Court against the reasonableness of the contribution.
25. The Committee notes that the argument that this represents an unjustifiable interference with property rights is not as compelling as the argument in relation to proposed s 94EAA (above), insofar as it does not constitute the removal of an existing right, and it does not operate selectively: it affects all who are subject to a special infrastructure contribution condition.
The bill does not provide for any appeal rights in relation to the unreasonableness of a decision as to the amount of a special infrastructure contribution. The bill enables the Minister to appoint a planning administrator or panel if the Minister is of the opinion that the council's performance has been unsatisfactory "because of the manner in which the council has dealt with those matters, the time or in any other respect". That is a dangerous clause.
Earlier I spoke about the effect of time; in other words, if a very extensive development does not fit in with council's overall plan and council wants some public feedback, it is certainly not unreasonable that some time be taken. It is the job of council to look after the people who live in its area. Under the Act administrators can be appointed if a council has been sacked because of corruption or just incompetence. That happened with Warringah, Liverpool and Rockdale councils. However, the new section is much broader and subjective, and a council's planning powers may be removed at the whim of a Minister. Basically, any council with a strong, vocal and active residents association could have its planning powers removed simply because the residents may be good lobbyists and hold up an inappropriate development.
The Local Government and Shires Associations of New South Wales are extremely disappointed that the Government has failed to facilitate meaningful public participation in the overhaul of the system by not consulting local government or the community. The Minister said the bill intends to reduce delays and costs in the assessment of development applications, provide for regional infrastructure and amenities in new land release areas and other sites identified for growth, and help co-ordinate local and State planning controls.
The Council of Social Service of New South Wales said the changes to the Environmental Planning and Assessment Act would give the planning Minister, Frank Sartor, unfettered power to reduce the level of developer contributions for community infrastructure, including child care centres and recreational facilities. The Housing Industry Association is concerned that section 94 payments have been increasing very greatly, and that is perhaps because of rate capping. Residents, developers and thus the purchasers of homes that are being developed are being slugged for infrastructure costs that used to be amortised over a far longer time and spread over the community as a whole.
The Local Government and Shires Associations, the Council of Social Service and the Housing Industry Association are extremely unhappy with the level of consultation. Once again the State Government's idea of consultation is to brief people about what it is going to do. At the crossbench briefing, when we asked whether there had been consultation, it was interesting that the answer was "Well, it is Government policy." The implication was that since it is Government policy, that is the game, so why consult? I suppose that that is the way departmental people are taught to respond. The bill is dangerous and a number of problems remain to be addressed. There are other ways of addressing those problems and while I have respect for Minister Sartor as a person, and for his intentions, indeed for his efforts, and to some extent for his record, I do not agree that this is the correct way to do planning. Therefore I oppose the bill.
Debate adjourned on motion by the Hon. Peter Primrose.
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