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Environmental Planning And Assessment Amendment Bill
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Page: 21504
Second Reading
Debate resumed from 9 March 2006.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.19 p.m.], in reply: It is clear that the Environmental Planning and Assessment Amendment Bill will have positive benefits for existing and future residents of New South Wales, particularly in relation to local planning outcomes and the provision of infrastructure to new growth areas. What is unclear, however, is the Opposition's policy position on planning and, in particular, the use of panels. The Australian Financial Review of 25 August 2005 stated:
Although some councils already use panels, under Mr Brogden's plans, their decisions on planning could be made compulsory … Mr Brogden said that after corruption findings at Strathfield Council where the mayor was documented taking bribes from a developer great efforts must be made to establish corruption proof councils.
In a media release dated December 2005 Barry O'Farrell stated:
Complaints about local government planning processes are one of the biggest issues residents raise with me each year … the complaints cover everything from time delays through to inconsistent treatment of applications.
Last year the Opposition supported independent panels and acknowledged problems in local planning processes, but in the lower House when this bill was debated approximately six months later the Opposition was not quite sure about what its position would be—so unsure that it did not vote on the bill. Now the bill has come before the upper House and the Opposition has decided not to support it, with the Hon. Patricia Forsythe asserting "The bill is a slap in the face for local government and local communities in this State". While the Opposition's policy position on local planning is very unclear and somewhat confusing, I would like now to provide some clarity.
The Minister advises me that he met with numerous organisations prior to introducing the bill, including the five mayors from the lower Hunter region, the mayors and general manager from the growth centres councils, the Property Council of Australia, the Urban Taskforce, the Urban Development Institute of Australia, the Housing Industry Association, and the Local Government and Shires Associations. Most of these stakeholders have since come out stating their respective positions on the bill.
I understand that the contentious areas of the bill relate to the provisions regarding panels and administrators and the provisions dealing with development contributions. With respect to concerns that local government has raised in response to the expanded provisions for panels and administrators, the Minister for Planning has stated that only a handful of local councils are likely to be directly impacted by these new provisions. These councils are the exception rather than the rule; they are councils failing to meet their planning obligations to ratepayers and the broader community.
Unfortunately, these few taint the reputation of local government across the State. These councils are dominated either by zealots, who want to stop everything, or, at the other end of the spectrum, developer-influenced rednecks, who want to approve almost everything without having regard to proper planning considerations. Most councils are in the middle and will not be affected by the bill. The problem is that the councils in the middle have been tainted by the performance of those that operate at the extreme and this is evidenced by the public's view of councils. A number of surveys and reports have been referenced as part of this debate and I will focus on those that were undertaken prior to the bill being introduced.
The survey commissioned as part of the independent Inquiry into the Financial Sustainability of NSW Local Government reports that only 9 per cent of people believe that elected councillors should determine development applications [DAs]. The inquiry found that "local council planning and the DA process in particular has become discredited". The report also states:
There is an indication that the public is supportive of a role for independent panels and that most would prefer councillors not to exclusively decide on DAs.
I agree with the Minister in that good planning and environmental outcomes do not require interminable process and delay. It needs to be clarified that the bill sets out that panels will determine development applications on their merits; this will be their decision, not the Minister's.
The Independent Commission Against Corruption also flagged the use of independent assessment reports in a report released last December. It found potential benefits included a mechanism for assessing DAs based on procedural fairness, and independent and professional judgments on DAs, which ensures decision making is more transparent and a counterbalance to perceptions of biased decision making by councillors. The combined effects of these two reports make a compelling case for supporting this bill.
In response to concerns raised by the Greens, it needs to be clarified that if a panel or administrator is appointed by the Minister to deal with a planning matter, this does not negate the requirements for public consultation or notification that is usually required under the Environmental Planning and Assessment Act 1979. As part of the Minister's consultation with stakeholders, he has clarified that panels may include representatives from the local community and/or the local mayor. I also understand that as a consequence of the Minister's discussions with local government, the Local Government and Shires Associations will be consulted in developing a performance reporting system for DA assessments and other relevant matters.
This system will acknowledge that while most local development applications should be dealt with within one to two months, some DAs can be controversial or complex and require detailed assessment and considerable consultation. An amendment will be moved in Committee in this regard. The new provisions allow for government intervention in local planning matters in a much more moderate way than is currently available. Honourable members should remember that the current powers allow only for the council to be sacked or to be stripped of its planning powers entirely. This bill allows for targeted intervention to specifically address particular problem areas of a council.
The new provisions relating to special infrastructure contributions are an extension of existing arrangements. Currently, the Minister is able to fund regional infrastructure through environmental planning instruments that require satisfactory arrangements for infrastructure to be reached before the development can proceed. The special infrastructure contributions will be spent on important items, such as public amenities and services, affordable housing, transport and other infrastructure, as well as environmental conservation. I am aware that there has been some concern over the level and nature of this contribution being set by the Minister for Planning and the implications it might have for housing affordability.
I am advised that the bill ensures that infrastructure contributions will be collected only where it is reasonable to impose an additional levy because of the extent and timing of the area's infrastructure requirements. The bill as drafted requires the level of special infrastructure contributions to be reasonable, having regard to the cost of infrastructure required as a result of development. To further ensure that the level and nature of these contributions are reasonable and that the area to which the contribution applies is appropriate, an amendment will be moved in Committee that sets out consultation to be undertaken by the Minister.
The bill enables the Minister to direct a council to make, amend or repeal a contributions plan within a certain period. One of the benefits to local government under the bill is that appeal to the Land and Environment Court against contributions determined under a contributions plan—if that plan is made or amended by, or at the direction of, the Minister—will not be possible. The bill also excludes appeal rights against the process for making, amending or repealing a contributions plan by, or at the direction of, the Minister. This will help secure the certainty of funds so that important infrastructure programs can be implemented. It will also prevent councils being challenged on matters that are beyond their control.
The Environmental Planning and Assessment Amendment Bill comprises a range of practical and reasonable measures designed to improve efficiency, promote consistency and to further streamline planning and development. The Government is a strong defender of the role of local government in this State, but it is broadly accepted that there are problems in local government planning processes. This bill is a practical solution to local government planning issues. It allows for specific, targeted intervention to address outstanding issues in a handful of councils. The bill will strengthen the Government's ability to deliver infrastructure, amenities and services in new land release areas and other areas where there will be co-ordinated growth and development. This is part of the Government's commitment to ensure that new communities are supported by appropriate and timely services and facilities. I commend the bill to the House.
Question—That the amendment be agreed to—put.
The House divided.
Ayes, 6
 | Mr Breen
Dr Chesterfield-Evans
Mr Cohen
Ms Rhiannon
Tellers,
Ms Hale
Dr Wong | |
Noes, 26
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Ms Cusack
Mr Donnelly
Ms Fazio
Mrs Forsythe
Miss Gardiner
Mr Gay | Ms Griffin
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Oldfield
Ms Parker
Mrs Pavey
Mr Pearce | Ms Robertson
Mr Ryan
Ms Sharpe
Mr Tingle
Mr Tsang
Mr West
Tellers,
Mr Colless
Mr Primrose |
Question resolved in the negative.
Amendment negatived.
Question—That the motion be agreed to—put.
The House divided.
Ayes, 20
Ms Burnswoods
Mr Catanzariti
Mr Della Bosca
Mr Donnelly
Ms Fazio
Ms Griffin
Mr Hatzistergos | Mr Kelly
Mr Macdonald
Reverend Dr Moyes
Reverend Nile
Mr Obeid
Mr Oldfield
Ms Robertson | Mr Roozendaal
Ms Sharpe
Mr Tingle
Mr Tsang
Tellers,
Mr Primrose
Mr West |
Noes, 18
Mr Breen
Dr Chesterfield-Evans
Mr Clarke
Mr Cohen
Ms Cusack
Mr Gallacher
Miss Gardiner | Mr Gay
Ms Hale
Mr Lynn
Ms Parker
Mrs Pavey
Mr Pearce
Ms Rhiannon | Mr Ryan
Dr Wong
Tellers,
Mr Colless
Mrs Forsythe |
Pair
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 3 agreed to.
Ms SYLVIA HALE [8.48 p.m.]: I move Greens amendment No. 1:
No. 1 Page 5, schedule 1 [14], lines 1 to 23. Omit all words on those lines.
Essentially, Greens amendment No. 1 deals with council section 94 plans. The Environmental Planning and Assessment Amendment Bill gives the Minister the power to make, amend or repeal a contributions plan. Not only does it give him such powers, there is no room for appeal to the court in relation to any decision made in accordance with any contributions plan that the Minister makes, amends or repeals. Councils are unable to appeal to the court on the impact of a decision to change section 94 plans, even if the impact of the decision is manifestly unreasonable.
Currently, section 94 levies are charged to compensate the community for the impact of additional development. Councils do not pluck a figure out of the blue and say that anyone who has approval for a development application must arbitrarily pay a certain amount of money. A council is required to prepare a section 94 contributions plan, which must outline how and where the council intends to spend the money. It has been asserted that councils have accumulated $700 million in underspent section 94 funds and that this is an indication of council irresponsibility. As was highlighted by legislation passed in the House last year, the failure of councils to spend much of that money was because they were hobbled by the very legislation surrounding section 94 plans.
Until the Act was amended last year, a plan divided a local government area into various sub-areas, but any contributions that were collected in relation to an area could be spent only in that area. That meant that the various sums of money were dispersed across a whole municipal area. Last year legislation was passed that allowed the funds to be pooled, so that a council may have a sufficient sum of money to put towards a reasonable undertaking, such as the construction of a child care centre or library, or the upgrade of sporting facilities. Only if the contributions from the section 94 plan were pooled together was it possible for councils to realistically spend money on infrastructure in accordance with their plan. Another change in the legislation stipulated that after money had been pooled for one project, over time it would have to be paid back to the area from which the money was raised and then a pooling could take place in relation to that area.
A further change that was brought about by the legislation allowed adjoining councils to pool funds for a project that would benefit both municipalities. In doing so, councils have to, first, propose their plans and, second, put them out for public submission. Only after an extensive period of public submission and consultation would a plan then be considered and adopted by council. I believe all parties consider that to be a reasonable, accountable and transparent process. From the start, the developers know the section 94 contributions for which they may be liable. The process allows a party who believes the contributions to have been incorrectly calculated to appeal to the court. The appeal must be purely on the basis that the contribution has been miscalculated and that the sum of money should be adjusted.
I cannot for the life of me understand how it could be suggested that any of those aspects is unreasonable, unfair or not transparent. Yet the bill provides for the exact reverse. New section 94EAA allows the Minister, without giving any reason and without there being any right of appeal, to repeal or amend a council's section 94 plan or to impose a plan of his own. It is a reversal of how the process should operate. To add insult to injury, the new section denies the right to appeal to the court, either on the grounds of reasonableness of the levy or on the merits of the levy. A process that is transparent, accountable and open to public critique and submission is being replaced by a course of action that will be imposed at the whim of the Minister.
The Minister may assure the House and local communities that he will act rationally and transparently. How does one know? The Minister is not required to account for his actions, and he will not be answerable for them. I believe it is the basis for a fundamental corruption of the planning system. There will now be two types of levies: the section 94 contributions, which are supposed to provide for local infrastructure, and the special infrastructure contributions. Today I received a letter from the Country Mayors Association indicating that councils are fearful that if the special infrastructure contributions made by developers are lowered, councils' section 94 levies will be hijacked by the Government to make up for the shortfall in the special infrastructure contributions.
Almost every council across the State, particularly country councils, know how strapped for cash it is in light of the Government's refusal to fund it properly or to allow it to set rates at a reasonable level. Rather, the Government caps rates at a level that the Government considers to be electorally acceptable. Rather than pass on a stipulated amount of GST to councils and allow councils to impose realistic rate levels, the Government now proposes to put in place a mechanism that will strip councils of one of the features of the Environmental Planning and Assessment Act that allows developers whose development applications have been approved to contribute to the provision of extra infrastructure. This is wrong and councils are opposed to this aspect of the bill.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.04 p.m.]: The Government does not support this amendment. The Minister must be able to intervene in contributions plans, to co-ordinate and to contain State and local levies and to prevent unreasonable local levies.
The Hon. PATRICIA FORSYTHE [9.04 p.m.]: The Opposition also opposes this amendment. However, I must make it clear that the grounds on which the Opposition opposes this and other amendments are perhaps different from the grounds offered by the Government. As I said in the second reading debate, the Opposition believes there is a role for local communities and local councils within the planning hierarchy of New South Wales, just as there is a role for the Minister for Planning and the Department of Planning and the Department of Natural Resources at the State and regional levels. We believe that this bill undermines the traditional planning hierarchy in New South Wales and diminishes the role of local communities and their elected representatives within that regime.
The Opposition opposed this bill at its second reading stage and it will oppose it at its third reading. In addition, it will not support any of the amendments, even if they attempt to make a bad bill better. The section 94 provisions and the Minister's contribution a few moments ago go to the heart of what the Opposition sees as a matter of principle. We do not believe it is the role or the right of the Minister for Planning to intervene in all local council decisions. There must be a clear differentiation between what local communities and councils can decide and the Minister's role. Just because the Minister does not like a local council policy decision or a section 94 decision it is not his place—as would be the case if this amendment were passed—to intervene and to usurp local councils' powers. Therefore, the Opposition opposes the bill. It will not support the Greens amendments, nor will it assist some honourable members to find an excuse to support the bill. It is a bad bill and it should be opposed at every turn.
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [9.05 p.m.]: Today at 12.31 p.m. I, and every other member, I would suggest, received an email from Dubbo City Council. The Mayor of Dubbo, Allan Smith—
The Hon. Tony Kelly: A good bloke.
The Hon. DUNCAN GAY: The Hon. Tony Kelly says that Allan Smith is a good bloke. I am led to believe that he is a member of the Labor Party. He certainly has a reputation as a good mayor. The email states:
Dear Members
At its meeting held on Monday 27 March 2006 Council gave consideration to the proposed amendments to the Environmental Planning and Assessment Act that are scheduled to go before the Legislative Council of the New South Wales Government today.
Following consideration of this proposal Council resolved to write to you expressing in the strongest possible terms its opposition to the proposed amendments. Council further resolved to request that appropriate consultation with all New South Wales Councils be undertaken prior to consideration of the amendments by the Legislative Council.
Accordingly, on behalf of Dubbo City Council I implore you as a member of the Legislative Council NOT to proceed to consider the amendments to the Act until such time as appropriate consultation with all Local Government Authorities has taken place.
I thank you for considering Council's request.
Allan Smith
MAYOR
Interestingly, the Minister said that the mayor of Dubbo is a "Good bloke." The Minister—certainly his office—would have received a copy of this email today. When he spoke in this debate the Minister did not represent his good mate and friend from a neighbouring town. So much for Country Labor representing its constituents. A copy of this email was sent to all members of the Legislative Council. Surely the mayor of Dubbo would have considered sending a copy of the email to the local member for Dubbo, who happens to be his former deputy mayor, Dawn Fardell. However, in her contribution to debate on this bill in the other place the member for Dubbo supported a bill that is opposed by the mayor of Dubbo. What can the mayor, the council and the people of Dubbo do about a local member who does not represent their views? They must have their views represented in this place, and I am doing that in this debate.
The bill and this amendment remove a power from the Minister. This Minister's track record would not encourage anyone to support him. Honourable members will recall that in the most recent plan the Minister subsumed the windmill project at Crookwell as State significant. The local council sent him a letter, as I did, on behalf of a constituent who lives in the middle of the planned wind farm. The constituent's small farm, which covers 300 or 400 acres, has been in his family since 1840. No windmills will be erected on his farm, but it will be surrounded by them. He will have to suffer the noise generated by the windmills; it will be difficult to live in his home. If he had plans to sell his property—and he does not—the windmill project would lower its value; the value of the property will be diminished. Because no windmills will be placed on his farm he will not receive any income from them.
Given that the Minister claims to represent local communities, I thought that this letter, which is supported by Upper Lachlan Shire Council, would have pinned his ears back and he would have arranged a meeting with Colin Dooley and his family. But what did I get from Frank Sartor? I got the same as Mundine got: the finger! The Minister would not meet with Mr Dooley. The Minister has classified the project as State significant but he will not meet with Mr Dooley. And the Government wants us to support legislation to give this Minister more power! Come on!
The Hon. Dr PETER WONG [9.09 p.m.]: I support the Greens amendment. I, too, share the Hon. Patricia Forsythe's view that this is a terrible bill. I wish to quote the President of the Western Sydney Regional Organisation of Councils, Councillor Tony Hay—another very good Labor member. He summed it up by saying:
This legislation strikes at the heart of local democracy. It gives the Minister unfettered powers with no rights of appeal or review and should be abandoned as it runs contrary to all the principles of good governance that this government so readily espouses. It has all the hallmarks of bad policy done on the run.
I would like to share the view expressed by the Deputy Leader of the Opposition by quoting the Mayor of Gunnedah, Councillor Gae Swain. She said:
The Bill lacks transparency and accountability and has been prepared without meaningful public participation by consulting Local Government or the community it represents.
Indeed, this Parliament's Legislation Review Committee shares our concern about the bill, and I wish to quote some of the committee's comments. It said:
The Bill 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 [proposed section 94EAA(1)].
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 [proposed section 94EEA(2)].
In each of these cases, the making, amending or repealing of the plan by or at the direction of the Minister cannot be appealed to the Land and Environment Court [proposed section 9EAA(4)].
Obviously, the committee shares the concern of many members of this House that the removal of the right of appeal is inappropriate in a democratic society and should not be supported by the Government. I believe the Government has got it all wrong. In my entire life I have not had so many Labor members and councillors ring me or come to see me. It is a terrible piece of legislation, as the Minister for Lands, and Minister for Rural Affairs must agree. I believe the bill will prove to be a great backlash for the Government in the election. I support the amendment.
Ms SYLVIA HALE [9.12 p.m.]: I cannot restrain myself from responding to the remarks of the Deputy Leader of the Opposition and the Hon. Patricia Forsythe. The Deputy Leader of the Opposition quoted a letter from the mayor of Dubbo, imploring members to consult before they go on to consider the bill further. Indeed, members were given the opportunity tonight, with the amendment moved by Mr Ian Cohen, to refer the bill to General Purpose Standing Committee No. 4 in order that public submissions could be entertained and the views of the Local Government Association and the community at large could be determined, but they voted against it. This is spurious opposition. The Hon. Patricia Forsythe said that we cannot make a bad bill better. It simply adds up to clayton's opposition—the token opposition put up so members can say to their constituency, "It wasn't our fault that it went through; we voted against it", when they know full well that, with what I believe to be the discreditable support of certain members of the crossbench, the bill is bound to pass.
I believe that what the Government and Opposition are conniving in by refusing to support any amendments to this bill, or refusing, as they both did, to send the bill off to General Purpose Standing Committee No. 4, is the complete gutting of any form of community consultation in this State, and they are also gutting local government. If there is one area that local government should be responsible for, it is the determination of development applications that will have an immediate impact on their communities. The bill allows the Minister to step in without any requirement that he give reasons, without any criteria whatsoever for his doing so, and without any right of appeal, to say, "We will amend the section 94 plan, we will impose a section 94 plan, we will institute special infrastructure levies, we will deny the rights of appeal, and we will impose planning administrators or planning panels."
The bill goes to the very heart of what local government is supposed to do. To stand back and be simon-pure and say, "It is not our job to make a bad bill better", is not good enough. What the Opposition is doing is conniving with the Government to make sure that the grounds are laid so that should the Opposition come to power it will be equally capable, able and willing to ride roughshod over any form of local democracy in this State.
Amendment negatived.
Ms SYLVIA HALE [9.16 p.m.], by leave: I move Greens amendments Nos 2, 3 and 4 in globo:
No. 2 Page 6, schedule 1 [15], proposed section 94EE. Insert after line 13:
(1) The Minister, in consultation with key stakeholders and the public, is to prepare and make publicly available, a plan (an infrastructure plan) that sets out the infrastructure that is to be provided in relation to each special contributions area from contributions under this Subdivision. The infrastructure plan is to set out the nature and location of the infrastructure and is to include a timetable for its construction and a budget.
No. 3 Page 6, schedule 1 [15], proposed section 94EE, line 14. Insert "in accordance with the relevant infrastructure plan and" after "The Minister is,".
No. 4 Page 6, schedule 1 [15], proposed section 94EE (2). Insert after line 20:
(a) the Minister is to consult with the Local Government and Shires Associations of New South Wales, and
Greens amendment No. 2 seeks to insert new section 94EE. As the bill stands, the Minister is able to determine the level and nature of development contributions. Greens amendment No. 3 seeks to incorporate in the Act a requirement that the Minister draw up an infrastructure plan. At the moment there is no constraint on how the Minister is to spend any of this money, there is no indication over what time frame he has to spend it, and there is no indication where he has to spend it or how he has to spend it. Indeed, it could be one gigantic grab for cash, which will not be used in accordance with the supposed objectives of the Act. As we see later in the bill, again there is no avenue open for any person to appeal to the court in respect of any determination the Minister might make with regard to special infrastructure contributions.
Greens amendment No. 4 says provides, in new section 94EE (2), that the Minister is to consult with the Local Government and Shires Associations of New South Wales, and that at least is some form of inclusion of the Local Government and Shires Associations in the process. It tries to inject into a bill that is inherently flawed an accountability mechanism, requiring the Minister to explain clearly what amount of money is being gathered, how it is to be applied and over what time, and for a budget to be prepared. In this way, at least the general public—or those people who have contributed to the special infrastructure levies—may be aware of how their money is to be spent. As it is, the bill virtually gives open slather to the Minister to collect levies willy-nilly, as there is no requirement for him to spend the levies in the areas from which they are gathered.
This notion was first introduced with the Redfern-Waterloo Authority Act and the provision in relation to the Carlton United Brewery site in Chippendale that any section 94 funds that were gathered in relation to that site could be spent in the Redfern-Waterloo area, of which Chippendale does not form a part. The Minister developed this idea of robbing Peter to pay Paul in relation to Chippendale and Redfern-Waterloo and now proposes to extend that on a grander scale and rob anywhere across the State to fund infrastructure across the State wherever he deems necessary. It is extraordinary that in a Government that is supposedly responsible and accountable for its actions, particularly for monetary expenditure and financial outlay, a Minister should be given such extraordinary latitude to determine how funds will be raised and where they will be spent. I would have thought that for any self-respecting conservative the hackles would immediately rise at this prospect and that there would at least be an endeavour to call the Government in, to restrain it and to make it as accountable as humanly possible for the way in which significant sums of money are going to be raised and spent throughout the State. I commend Greens amendments Nos 2, 3 and 4 to the Committee.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.22 p.m.]: The Government does not support Greens amendments Nos 2, 3 and 4. In relation to amendments Nos 2 and 3, a Government amendment has been prepared which will give a similar effect. In relation to amendment No. 4, the Government amendment with regard to development contributions allows for appropriate options for consultation.
The Hon. PATRICIA FORSYTHE [9.23 p.m.]: The Opposition opposes the special infrastructure contributions as a matter of principle; therefore, we are not going to support the position taken by the Greens. I will have more to say about the Government's amendment shortly, particularly the view of the Housing Industry Association. When talking about the history of planning in New South Wales earlier tonight, one of my colleagues reminded me of the days of the Askin Government and what was termed the "betterment tax", which is exactly this levy by another name. It was to be a tax imposed on the development of land. As my colleague the Hon. Greg Pearce has reminded me, a classic area where this was relevant was in the original proposals for the development of the Somersby area. In fact, the consequence of placing this tax regime over the land is that nothing happened; people were not prepared to put their land up for development because before they were able to realise any sort of money on it, they were very conscious that they were going to have to pay a tax in whatever form.
If the Government sees this as a way of being able to get a contribution towards roads and schools, as they have identified, over and above what we normally see as a local component through section 94, then this is likely to have unintended consequences. The Opposition, being a responsible Opposition, would say that there is a role and a place for development in New South Wales. In the north-west and south-west regions of Sydney development is quite urgent because of the failure of this Government over a long period of time to release adequate lands through Landcom. We have to look at future development but the unintended consequence of this infrastructure development contribution may well be that people will hold onto their land when they might otherwise have been prepared to make it available for development.
I say that because we are a responsible Opposition. We believe in the responsible growth of Sydney. It is inevitable, given the population of Sydney, that it will not be all from infill, and in fact growth has to be into what would otherwise be greenfield sites. Far from achieving what the Government intends, this whole new infrastructure contribution may impede the very development that the Government wants to achieve. I suggest that members of the Government go back and review comments made by members of the Labor Party—particularly by people in some of the outer Sydney fringe areas—when tax was under discussion during the time of the Askin Government because I think they may well find that some of the issues that were raised then are as pertinent today.
The Opposition does not agree with the original principle in relation to this bill and we are not going to support the amendments. If we do not agree with the underlying principle why would we endorse something that seeks to amend it? We fundamentally oppose the initial proposal and we will not support the amendments.
The Hon. Dr PETER WONG [9.27 p.m.]: I support the Greens amendments. I question the Government's intentions and what it has in mind for section 94 and the infrastructure government contribution fund, as mentioned by the Hon. Patricia Forsythe. It was reported that the Government made a comment about $700 million in trust funds under section 94 held by 152 local government councils. I want to know: does the Labor Government intend to use it for election purposes?
Ms SYLVIA HALE [9.27 p.m.]: The concern about the amending bill is right across-the-board, being initially from the Property Council, the Housing Institute of Australia, the Local Government and Shires Associations and various community groups. All have been dismayed. This morning I received an email from the Housing Industry Association expressing its concern about the bill and specifically about the special infrastructure contributions. It says:
HIA remains concerned about the proposed provisions relating to the expansion of special infrastructure contributions to cover a broad range of public infrastructure items across any part of the State. There is still nothing in the bill that guarantees that a lesser quantum of contributions will result or that once set, the rate of the levy will not increase over time, either separately or in conjunction with the local council section 94 levies.
The Housing Industry Association is concerned that the levies will go up. Councils are concerned that the levies will go down. There is every reason to believe that councils have more right to be concerned. I rang Ken Morrison of the Property Council of Australia and asked his view of the bill. He said, "We really support curbing local government's planning powers and the appointment of a planning panel or a planning administrator, but we have been given assurances that the department is already setting in place a review to reduce the levies that will have to be paid by developers." So, it is perfectly clear who has the ear of the Government. It is not local councils and the community; it is the Property Council of Australia.
This bill is the perfect mechanism for carrying out the wishes of the Property Council. We will inevitably see—and obviously the Property Council believe this to be the case—that the quantum of levies developers will end up paying will be significantly reduced and local councils will have to put their hands in their pockets to make up the difference because they will have fewer section 94 funds. That means that local residents will be denied amenities that should be provided by any properly functioning council. I urge honourable members to support Greens amendments Nos 2, 3 and 4 because they introduce some measure of transparency and accountability into the bill.
Question—That the amendments be agreed to—put.
The Committee divided.
Ayes, 6
| Mr Breen
Dr Chesterfield-Evans
Mr Cohen
Ms Rhiannon
Tellers,
Ms Hale
Dr Wong | |
Noes, 24
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Donnelly
Mrs Forsythe
Miss Gardiner
Mr Gay
Ms Griffin
Mr Kelly | Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Oldfield
Ms Parker
Mrs Pavey
Mr Pearce
Ms Robertson
Mr Ryan | Ms Sharpe
Mr Tingle
Mr Tsang
Mr West
Tellers,
Mr Colless
Mr Primrose |
Question resolved in the negative.
Amendments negatived.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.39 p.m.], by leave: I move Government amendments Nos 1 and 2 in globo:
No. 1 Page 6, schedule 1 [15], proposed section 94EE. Insert after line 36:
(4) In determining the level and nature of development contributions to be imposed as conditions under this Subdivision for development within a particular special contributions area (other than a growth centre), the Minister is to do one or more of the following:
(a) consult with owners of land in the special contributions area and other relevant stakeholders,
(b) publicly exhibit a proposal in relation to the level of development contributions and seek submissions within a reasonable time in relation to that proposal,
(c) establish a panel that, in the Minister's opinion, represents the interests of the various relevant stakeholders and consult with that panel.
No. 2 Page 8, schedule 1 [15], proposed section 94EG. Insert after line 2:
(4) Before creating a special contributions area (other than a growth centre), the Minister is to consult with the peak industry organisations that the Minister considers to be relevant.
Amendment No. 1 inserts a requirement that the Minister, in determining the level and nature of special infrastructure contributions in an area other than a growth centre, will do one or more of the following: consult with the owners of the land in a special contributions area and other relevant stakeholders; publicly exhibit a proposal in relation to the level of development contributions and seek submissions within a reasonable time in relation to that proposal; and establish a panel that in the Minister's opinion represents the interests of the various relevant stakeholders and consult with that panel. This amendment will ensure accountability and transparency in the determination of special infrastructure contributions. It will enable a Minister to consider the views of relevant stakeholders in determining the level and nature of such contributions in areas other than growth centres.
This means that there will be a formal process for the Minister to consider stakeholders' views on the types of infrastructure required to support the development, the cost of that infrastructure and the level of State Government levies that can be accommodated by development in growth centres. Development corporations may choose to consult stakeholders when preparing recommendations for the Minister on the level and nature of special infrastructure contributions. For example, the Growth Centres Commission set up an advisory panel consisting of industry nominees and other stakeholder representatives to comment on the proposed levy and the use of levies in the north-west and south-west growth centres.
Amendment No. 2 inserts a requirement that the Minister, before creating a special contributions area other than in growth centres, is to consult with peak industry organisations that he considers relevant. This amendment will ensure that relevant stakeholders are consulted before a special contributions area is declared. This means that the views of the relevant stakeholders will be considered before a new area is opened up for the question of special infrastructure contributions. This amendment recognises that the declaration of a new special contributions area will impose new obligations on developers to contribute to such infrastructure required to support development in those areas. As such, developers and other affected stakeholders need to be consulted. At the same time the amendment retains the flexibility in the bill, that is, the bill will ensure that the Government identifies priority areas for provision of essential infrastructure. The Minister will be able to declare new special contributions areas to ensure that the Government can meet these infrastructure needs.
The Hon. PATRICIA FORSYTHE [9.42 p.m.]: Earlier in relation to the Greens amendment Ms Sylvia Hale quoted the views of the Housing Industry Association [HIA], which I think are also relevant to the Government's amendments. The Opposition has received the following advice:
The HIA does not believe that the possible benefits that arise from the proposed planning reforms aimed solely at poorly performing councils, outweigh the damage that the special contributions aspects of the bill would create for new home buyers in New South Wales …
Despite the amendments to the bill that are now proposed, the level and nature of any special infrastructure levy will still largely be determined by the Planning Minister …
HIA's members unanimously and wholeheartedly believe that the up-front funding of such infrastructure is grossly inequitable and will impact deleteriously on housing affordability in this State at a time when home owners can ill afford it.
The House well knows the views of the Opposition on housing affordability. In the last week the House sat, the Opposition moved to establish an inquiry into housing affordability because of the significant crisis in relation to that matter in this State but the motion was not supported. However the Government seeks to dress up the issue of the special contribution levy, the reality is, although in the first instance it is a tax on the landholder, those seeking to purchase houses in new development areas, such as in the south-west and north-west of Sydney, will bear the burden and pay the cost. Housing affordability is a significant issue. If one compares the cost of housing in New South Wales with other States and, particularly, Sydney with New York and London, Sydney is not placed favourably. Therefore, there are no grounds upon which the Opposition can support these amendments, notwithstanding the Government's best intentions to try to improve its flawed bill.
Reverend the Hon. FRED NILE [9.45 p.m.] by leave: I move Christian Democratic Party amendments Nos 1 to 7 in globo:
No. 1 Page 6, schedule 1 [15], proposed section 94EE. Insert after line 36:
(4) The determination of the Minister:
(a) is to contain reasons for the level and nature of the development contributions, and
(b) is to be made publicly available by the Minister.
No. 2 Page 10, schedule 1 [19]. Insert after line 19:
Review
(1) The Minister is to review Subdivision 4 of Division 6 of Part 4 of this Act to determine whether the policy objectives of that subdivision remain valid and whether the terms of this Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to the amending Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.
No. 3 Page 11, schedule 2. Insert after line 32:
[3] Section 117 (4A)
Insert after section 117 (4):
(4A) Before giving a direction under subsection (2) (c), the Minister is to consult with the Local Government and Shires Associations of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).
No. 4 Page 12, schedule 2 [3], proposed section 118. Insert after line 35:
(4) A panel may not exercise the functions of a council for a continuous period of more than 5 years.
(5) If a panel exercises the functions of a council for a continuous period of more than 2 years, the Minister is, as soon as practicable after 2 years after the date on which the panel was appointed, to conduct a review of the appointment and functions of the panel.
(6) A review under subsection (5) is to be conducted by the Minister in consultation with the Minister for Local Government, the Local Government and Shires Associations of New South Wales and any other industry organisation that the Minister considers to be relevant.
No. 5 Page 13, schedule 2 [3], proposed section 118 (5), line 2. Omit “consult with”. Insert instead “obtain the concurrence of”.
No. 6 Page 13, schedule 2 [3], proposed section 118. Insert after line 2:
(6) The Minister may appoint a planning administrator or a panel for a reason set out in subsection (1) (b) only if the Minister has, by order published in the Gazette, provided heads of consideration for the exercise of power under subsection (1) (b), and has taken those heads of consideration into account.
No. 7 Page 13, schedule 2 [3], proposed section 118. Insert after line 6:
(7) The Minister must, as soon as reasonably practicable after appointing a planning administrator or a panel, make the reasons for that appointment publicly available.
As honourable members know, my votes and those of Reverend the Hon. Dr Gordon Moyes have been critical for the passage of this legislation. We have been under a great deal of pressure from many stakeholders concerned about the legislation. This puts a heavy responsibility on us to exercise our votes in a responsible way. The philosophy of the Christian Democratic Party, as I have stated on other occasions, is to endeavour to help the elected government, whether it is Labor or Coalition, to govern. Obviously if we think its policy is wrong, the Reverend the Hon. Dr Gordon Moyes and I will vote against it as we have done in relation to poker machines and other moral issues.
We seek to improve legislation through amendments after consultation with the Government. We have been able to obtain the co-operation of the Minister to move these amendments, which meet many concerns of the Local Government Association, the Shires Association of New South Wales, the Total Environment Centre and the Nature Conservation Council of New South Wales. We have taken on board their concerns and discussed them with the Minister for Planning, the Hon. Frank Sartor, to see what amendments can be moved to meet some of those concerns. I am pleased we have been able to negotiate a number of important amendments.
We try to ascertain the specific concerns of people who oppose legislation and refine their objections, as we have endeavoured to do in this case. For example, the Total Environment Centre, the Nature Conservation Council and local government bodies were concerned that under the current bill the Minister for Planning only had to consult with the Minister for Local Government before making decisions, but not obtain his concurrence. The Minister for Planning has agreed to accept our amendment so that he has to have the agreement of the Minister for Local Government. Some people were concerned that the legislation seems to give untrammelled powers to the Minister that he may abuse. Amendment No. 5 provides that the Minister will obtain the concurrence of the Minister for Local Government.
That is only one example of negotiating important amendments. All the organisations that lobbied us said there are no criteria on which the Minister could decide to appoint a planning administrator or a panel. We have endeavoured to deal with that issue in amendment No. 6, which provides that the Minister can exercise only those powers consistent with heads of consideration previously gazetted by the Minister. The heads of consideration—"criteria" is another word—will be gazetted and made available to all members of the Legislative Council. Obviously they could be disallowed if members feel they are still inadequate.
The Local Government Association of New South Wales and the Shires Association of New South Wales asked to have made explicit the criteria to be used by the Minister in determining whether a planning administrator or panel is to be appointed. There is concern about why the Minister would intervene, although the legislation clearly states why the Minister would take action and appoint a planning administration or a panel. Proposed section 118 states:
118 Appointment of planning administrator or panel
(3) The Minister may appoint a planning administrator or a panel (or both) to exercise functions of a council if:
(a) the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, or
(b) the Minister is of the opinion that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters, the time taken or in any other respect, or
(c) the council agreed to the appointment, or—
some councils have indicated their willingness to co-operate in this process—
(d) a report referred to in section 74C of the Independent Commission Against Corruption Act 1988 recommends that consideration be given to the appointment because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of functions conferred or imposed on the council by or under this Act.
So those conditions are provided as well. Also, the Minister will now be required to publish the reasons for such an intervention, which will bring some transparency to the legislation. When I was speaking to people about the bill it became clear that there has been some misinformation about it. That has caused unnecessary alarm—I would even say hysteria—in some sections. It has also caused paranoia, as the Hon. Dr Peter Wong demonstrated when he asked whether the Government would take the $700 million held by all councils and use it for the Labor Party's election campaign. Legally, that cannot happen. That would be corruption and it would be dealt with by the ICAC.
That is the sort of misinformation that has been spread about the bill, which I believe has caused councils to be concerned unnecessarily. Also, I believe that is the reason we have received correspondence from almost all councils in New South Wales asking us to oppose the bill. A lot of that is based on misinformation. Indeed, I am not sure whether councils fully understand the legislation, as I have been trying to point out.
The Hon. Patricia Forsythe: I think they do.
Reverend the Hon. FRED NILE: I do not think they do, judging by some comments I have heard. Today I received a letter from the Minister in which he made commitments to the Christian Democratic Party. The letter states:
Dear Reverend Nile
In response to the matters that we discussed with regard to the Environmental Planning and Assessment Amendment Bill, please be advised that I accept your proposed amendments as follows:
1. Amend S118 (5) to provide for the "concurrence" of the Minister for Local Government, rather than "to consult with";
2. Amend S118 (1) to provide:
_ that subsection (b): "Must only be exercised consistent with heads of consideration previously gazetted by the Minister.
_ That, in respect of any intervention by the Minister to appoint an administrator, or a panel under S118 (1), the Minister must publish reasons for such an intervention;
3. That in respect of decisions to set "Special Infrastructure Contributions", the Minister must publish reasons for the level of contributions set.
To address the matter of local representation on Panels, you have my commitment that these Panels will comprise representatives from the local community.
Yours sincerely
Frank Sartor
Minister for Planning …
In discussions with me the Minister indicated that the local representatives could possibly include the local mayor, who would be the chairman of the panel. Obviously if there was a question about the mayor personally, he or she could not be appointed. But the Minister has given an undertaking about that approach. Although Opposition members are sitting on their hands in terms of this legislation, I believe we should allow the bill to proceed with these amendments. Amendment No. 2 is important as it provides for a review of the legislation. The amendment states:
Review
(1) The Minister is to review Subdivision 4 of Division 6 of Part 4 of this Act to determine whether the policy objectives of that subdivision remain valid and whether the terms of this Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to the amending Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.
Crossbench members are always keen to include in legislation the requirement for a review and report to the Parliament, and the Minister has agreed to accept our amendment. Amendment No. 4 places some restraints on the operation of the panels. A panel may not exercise the functions of a council for a continuous period of more than five years; and if a panel exercises the functions of a council for a continuous period of more than two years the Minister is, as soon as practicable after two years after the date on which the panel was appointed, to conduct a review of the appointment and functions of the panel.
A review under subsection (5) is to be conducted by the Minister in consultation with the Minister for Local Government, the Local Government and Shires Associations of New South Wales and any other industry organisation that the Minister considers to be relevant. Some councils were concerned that the bill did not provide for consultation, and I believe that our amendment addresses that concern.
Ms SYLVIA HALE [9.58 p.m.], by leave: I move Greens amendments Nos 5 and 11 in globo:
No. 5 Page 6, schedule 1 [15], proposed section 94EE. Insert after line 36:
(4) The Minister is to prepare reasons for any determination made under this section and is to make those reasons publicly available.
No. 11 Page 13, schedule 2 [3], proposed section 118. Insert after line 2:
(6) The Minister may appoint a planning administrator or a panel for a reason set out in subsection (1) (a) or (b) only if:
(a) the Minister does so in accordance with Guidelines, which are to be prepared by the Local Government Liaison Committee and adopted by resolution of that Committee, and
(b) the Minister provides the relevant council with reasons as to why the Minister is of the opinion that:
(i) the council has failed to comply with its obligations under the planning legislation, or
(ii) the council's performance in dealing with planning and development matters is unsatisfactory.
(7) Sections 40 and 41 of the Interpretation Act 1987 apply to the Guidelines referred to in subsection (6)
(a) in the same way as those sections apply to statutory rules and, for the purposes of those sections, the Guidelines are taken to be made on the day that they are adopted by the Local Government Liaison Committee.
Greens amendment No. 5 requires the Minister, when determining any levies for special infrastructure contributions, to prepare reasons for any determination made under this section, and to make those reasons publicly available. I would think the purpose of the amendment is obvious. Some of the major shortcomings of the bill are lack of transparency, lack of accountability, and failure to require that the Minister justify or be held to account for his actions.
The amendment requires the Minister to give reasons for his decisions. That is hardly a radical proposition. It should be one of the most elementary requirements for any ministerial action. The amendment should appeal to all parties that will be affected by this legislation, whether they be developers or councils or residents. This is a legislative provision requiring the Minister to publicly account for his actions and to provide reasons.
Greens amendment No. 11 relates to the Minister's power to appoint a planning administrator or a planning panel. The amendment provides that the Minister may appoint such a panel as set out in subsection (1) (a) or (b) but only if the Minister does so in accordance with guidelines, which are to be prepared by the Local Government Liaison Committee and adopted by resolution of that committee; and if the Minister provides the relevant council with reasons as to why the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, or the council's performance in dealing with planning and development matters is unsatisfactory. The amendment then goes on to provide:
Sections 40 and 41 of the Interpretation Act 1987 apply to the Guidelines referred to in subsection (6)
(a) in the same way as those sections apply to statutory rules and, for the purposes of those sections, the Guidelines are taken to be made on the day that they are adopted by the Local Government Liaison Committee.
The Environmental Planning and Assessment Act provides for a local government liaison committee. This committee has not yet come into being, but its membership is constituted of persons from the planning profession, the architectural profession, the industry as a whole, and local government. If the legislation already provides for such a committee, it seems to me that this is a perfect opportunity for the Act to take advantage of that provision and use the committee. In establishing those guidelines, once again we would be introducing into the Act an element of transparency that is otherwise absent from it.
One of the major concerns about the legislation is that the Minister will have the power to appoint a planning administrator and, under section 118 (1) (b), will have power to appoint a planning administrator if the Minister is of the opinion that the performance of the council is unsatisfactory, whether that be in regard to the way in which it has dealt with matters, the time it has taken, "or in any other respect". That latter phrase once again gives the Minister complete discretion in interpreting the activities of any council, and gives the Minister sole power to appoint a planning panel, and to do so for any reason.
Another reprehensible aspect of this legislation is that it does not impose on the Minister any requirement to justify whom he appoints to any planning panel, nor any requirement to disqualify anyone from being on such a panel, even if they have a conflict of interest. The provision is totally open to subversion and corruption. At least a council is accountable every four years. That is, if the community is dissatisfied with the council's planning decisions, or is concerned that its decisions are made either too quickly or too slowly, it has the opportunity to replace its councillors. But, under this legislation as it stands, there is absolutely no limitation on the length of time during which a council may have its planning functions removed.
Country mayors constantly complain of how slow the Department of Planning is to approve, refuse or consider local environment plans or other proposals from councils. A constant source of complaint by local government is the inadequacy and tardiness and dilatoriness of the Department of Planning. One can understand why that is so, because the Department of Planning has been subject to three major upheavals. It was restructured and combined with Infrastructure and Natural Resources, and then it was restructured and returned to being a stand alone department—and in the process it lost many of its more skilled planners and personnel. We all know that throughout the State there is a severe lack of people with planning expertise. Because of the shortage of planners, many planning experts who live in a country area work for private industry, not for a council; and serving on a planning panel would almost inevitably result in a conflict of interest when it comes to determining development applications, especially in country areas.
I believe that the amendment moved by the Government is faulty. It provides, in relation to development contributions, that the Minister is to do one or more of three listed options. There is no requirement on the Minister to do any more than one of those—and one may merely be to consult with owners of the land in the special contributions area and other relevant stakeholders. All that that says is that the Minister may choose to consult. It does not even impose a requirement that the results of those consultations should be made publicly available. All the Minister has to do, perhaps, is pay lip service to consulting with the landowners.
The second option that the Minister might adopt, but is not required to adopt, is to publicly exhibit a proposal in relation to the level of development contributions and to seek submissions within a reasonable time. Anyone who is aware of the Government's record on seeking submissions knows that often it sets an absolutely minimal time for the making of such submissions. Again, the Government's amendment contains no requirement that those submissions be made publicly available. The Government may indeed publicly exhibit its proposal, but absolutely nothing in the Government's amendment or legislation requires the Minister to let the public know what submissions have been made or what is contained in them.
The third option is that the Minister establish a panel that, in the Minister's opinion, represents the interests of the various relevant stakeholders, and consult with that panel. Once again, it is totally up to the Minister's discretion as to who might be included on such a panel. I had that experience today in relation to the Enfield intermodal logistics terminal, which is creating great concern in the Strathfield and Enfield area. A resident complained about the panel the Minister has appointed to take public submissions and to assess them. According to the resident, one member of that panel has a direct conflict of interest in the matter. However, when the resident made the complaint, it was the Department of Planning_that is, the Minister_who determined that there was no conflict of interest. The people who appointed the panel are the people who hear any allegations of conflicts of interest. If that is the case in relation to the intermodal logistics terminal at Enfield, we can expect it to be the same in regard to any panel the Minister for Planning may constitute. This is token, lip service compliance with the concerns that have been raised across the board. Government amendment No. 2 states:
Before creating a special contributions area (other than a growth centre), the Minister is to consult with the peak industry organisations that the Minister considers to be relevant.
When you are talking about an industry organisation, you are obviously talking about the Housing Industry Association or the Property Council. However, in my view it is not usual for people to refer to local government as "a peak industry organisation". The proposal does not even include taking into consideration the views of the affected local government area. It just takes the property industry into consideration. The property industry is a massive contributor to the Government's funds. The Greens believe that the Government's amendments are sadly lacking.
I refer to the amendments moved by the Christian Democratic Party. Amendment No. 5 requires the Minister for Planning not merely to consult with the Minister for Local Government but to obtain the concurrence of the Minister for Local Government before appointing a planning panel or planning administrator. That is a complete copy of amendments that have been moved by the Greens. The Christian Democratic Party is trying to somehow, in a rather shame faced manner, say, "Well, it is an essentially abhorrent bill. We will try to tidy it up a little." However, they will not go far enough to meet the requirements of the Local Government and Shires Associations in this State.
The CHAIR: The Committee will vote seriatim on Greens amendments Nos 5 and 11.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [10.14 p.m.]: As has been indicated in the letter from the Minister for Planning, the Government supports the well-researched and defined amendments of Reverend the Hon. Fred Nile. As his amendment is similar to Greens amendment No. 5, but more defined and a better amendment, the Government will not accept Greens amendments Nos. 5 and 11.
The Hon. PATRICIA FORSYTHE [10.14 p.m.]: I will make one comment in relation to the letter from the Minister for Planning that Reverend the Hon. Fred Nile read. The letter perhaps gave him some assurances in relation to amendments that the Government is moving. I note that the letter began by stating that the Minister gave a guarantee that he would consult with local government. I place on record that one of the concerns of local government in relation to this bill is consultation. Consultation is not a matter of just picking up the telephone and telling local government that you are going to do something. Consultation is a genuine process by which the opinions of local government would be given due consideration.
That is not what the Minister has done, for example, in relation to this legislation. He claimed to have consulted originally. He did not; he merely told local government. When Reverend the Hon. Fred Nile quotes the Minister's letter and says that the Minister gives a guarantee to consult, that can mean anything_and when it comes from this Minister for Planning it means very little. I say to the members of the Christian Democratic Party that, notwithstanding their so-called letter from the Minister that is meant to give some justification to their position, Opposition members do not accept the position taken by the Minister for Planning. He is good on words, but it is action that counts. When it comes to action, he has treated local government shabbily in relation to this legislation. He is seeking to undermine the position of local councils in regard to planning in this State. We will not support that.
The Hon. Dr PETER WONG [10.16 p.m.]: I share the concern of Ms Sylvia Hale. I have read the Government's amendment. I do not see why the Government could not put in its first amendment:
(a) consult with owners of land in the special contributions area and other relevant stakeholders,
and then (b) and (c), et cetera. With regard to Government amendment No. 2, I fail to see why the Minister for Planning cannot consult the relevant local council. I also share Ms Sylvia Hale's view about concern expressed in a letter from the Country Mayors Association of New South Wales in relation to this bill. The letter stated in part:
The views of the local communities need to be considered. The appearance of direct political intervention in the land development sector in regional areas needs to be reduced not added to.
Furthermore, as mentioned by Ms Sylvia Hale, on a practical level the Department of Planning does not currently have sufficient experienced qualified development assessment staff to meet its existing workload. Therefore, I do not know what the Government is talking about. I mention the $700,000,000 to which Reverend the Hon. Fred Nile referred. I asked during the consultation with local government representatives: As the Government made allegations that local government may have $700,000,000 in its trust fund, would the Government not consider using it for election purposes? The answer was, "Yes." Reverend the Hon. Fred Nile knew that that was the reply. Why did he not ask the question then?
Reverend the Hon. Fred Nile: I was quoting what you said here tonight.
The Hon. Dr PETER WONG: I know. Exactly right. That was the question I asked this morning. You were there.
Reverend the Hon. Fred Nile: But you said it here tonight.
The Hon. Dr PETER WONG: I said it tonight because I was asked that question, and I am sure you know.
CHAIR: Order! Comments should be directed through the chair and not across the Chamber.
The Hon. Dr PETER WONG: We all know how politics works. We know how valuable $700,000,000 can be at election time; it can buy a marginal seat. We know from today's debate on the M5 East tunnel that three chimneys became one because of politics. I am sure that Reverend the Hon. Fred Nile is not that naive or stupid.
The Hon. PETER BREEN [10.20 p.m.]: Today the crossbench had the benefit of a briefing from the Local Government Association, the Environmental Defender's Office and the Total Environment Centre, all of which expressed grave concerns about the impact of the Environmental Planning and Assessment Amendment Bill on local government. One paragraph of a letter that arrived today from the Local Government Association states:
In our view this legislation is a cross-roads in the relationship between local and State government and our communities. The onus is on us as community representatives to fight as hard as we can to promote and preserve transparency and accountability in decision making and planning. Failure to address the State Government's proposed legislation will be felt throughout the local communities of NSW.
I have not seen such a level of concern about legislation in all the time that I have been in this House. The Local Government Association, the Environmental Defender's Office and, in particular, Jeff Angel from the Total Environment Centre were absolutely livid by the reach of the legislation into the operations of local government in the planning process. The bill gives the Minister for Planning unprecedented powers to interfere in the planning process on the basis that he believes that council's treatment of a particular proposal is unsatisfactory. This unqualified power does not belong in the hands of one Minister. It undermines the reason for local government. Without their planning powers and their ability to determine what happens to section 94 contributions, local councils will become redundant to the Minister. There are in existence already in New South Wales various offices where representatives from the Minister are involved in the planning process. The appointment of panels will legitimise that process.
Before long we will find that the Minister constantly and persistently interferes with local government. If local councils do not co-operate and do what the Minister wants a panel will be appointed. This is the most undemocratic legislation dealing with the operations of the work of local government that I could imagine. I support Greens amendments Nos 5 and 11. We have had the benefit of advice from the Local Government Association and the Total Environment Centre about them. We were advised that we should support the amendments as a last resort if it appeared that the bill was going to be passed, and that certainly is what is happening. However, we now have to consider amendments from the Christian Democratic Party, on which we have not had the benefit of advice. My normal reaction would be: In the absence of advice, act on the last instruction, which was to oppose the bill. However, the difficulty for all crossbench members is that if the Greens amendments are defeated we are faced with a bill that we oppose totally, and that is an appalling injustice to local government that will create a whole regime of planning and treatment of section 94 contributions that is likely to create local government revolution.
How will the Minister deal with applications if all councils in New South Wales decide to let the Minister do it if he wants to be the planning determiner in these matters? If they were to say to applicants, developers, builders and people who want to build additions to their houses, "The Minister is now in control of planning. We will send the applications to him," there would be absolute chaos. If I were involved in local government and if I were opposed to the bill, as local government representatives appear to be, that would be the only reasonable course of action. However, we are still faced with the problem of how to vote on the amendments. Although I support Greens amendments Nos 5 and 11, they are replicated in amendments moved by the Christian Democratic Party.
Mr Ian Cohen: Word for word?
The Hon. PETER BREEN: They are not word for word in one case, but they are in the other case. Another amendment moved by the Christian Democratic Party relates to a review of the legislation and it is replicated in a Government amendment. It is difficult to know how to support the amendments. Although I support the Greens amendments, I am concerned that the Christian Democratic Party amendments have been approved by Frank Sartor. To my mind, that is a good reason not to support them.
Mr IAN COHEN [10.24 p.m.]: I am compelled to add only a few words and to make a few minor points because I appreciate the role taken by Ms Sylvia Hale, who has gone to a great deal of effort to follow through on the Environmental Planning and Assessment Amendment Bill as the Greens spokesperson on planning. When Frank Sartor goes out to local councils he does not consult, he insults. He insults my community and many other communities. The man is a megalomaniac. He does not know how to deal with people. He does not know the history of Labor. He does not know the party, the people or the pressures that are involved at a council level dealing with the community. He has not had to do that because he has had the fiefdom of Sydney council for so many years where he had a bevy of experts and planners to do the work for him. He does not understand the pressures in dealing with community and council. I am afraid what we are seeing here, aided and abetted by the likes of Reverend the Hon. Fred Nile and Reverend the Hon. Dr Gordon Moyes, is an absolute abrogation of responsibility or any principle by many people in this Committee today. I do not accept the argument.
What is really happening is a toadying to the government of the day, which, in turn, is a toadying to the development industry. It is an appalling situation. Every so often when the Government introduces planning legislation it comes up. As the Hon. Peter Breen accurately said, the legislation guts the power of local government, another tier of government, in this State. Therefore, it is attacking the community. How can this be possible, particularly in an election year? More and more I am convinced that the Government does not need to worry about the sensitivities of the community and what people really feel, nor does it have to look in detail at the issues and the way things are done. The Government goes through the actions to facilitate the development industry, it gets a bag of money coming up to the election and then it is able to finance conning the public. We are seeing the degeneration of democracy, and the bill is very much part and parcel of that. After many years of not building a house on my property, which is in the coastal zone, I found out today that any size development I want to undertake will have to be sent off to Frank Sartor's department because local council will no longer be able to deal with it. I will throw in a little cheque to the New South Wales Labor Party with my development application!
Reverend the Hon. FRED NILE [10.29 p.m.]: I thank the Government for accepting the Christian Democratic Party amendments. Contrary to what the Hon. Peter Breen said, we would not have supported the Environmental Planning and Assessment Amendment Bill unless we had those amendments. He has it back to front. He said that he would not vote for the amendments because Mr Sartor supported them. However, he has to support them for us to support the bill. That is the whole principle. A previous speaker gave the impression that a lot of developers and real estate agents could be on the panel, but disclosure of pecuniary interest is covered clearly in the legislation. It is just as detailed for members of Parliament as it is for members of the panel. It was stated also that the Minister for Planning would do whatever he liked with all the developments. However, the bill says specifically that the panel is not subject to the control of the Minister in determining a development application. The Minister has no impact on the development application.
The Hon. PETER BREEN [10.29 p.m.]: Reverend the Hon. Fred Nile is underestimating the power of the Minister under this legislation. Christian Democratic Party amendment No. 3 states:
… the Minister is to consult with the Local Government and Shires Associations of New South Wales and any other industry organisation the Minister considers to be relevant …
That is arbitrary power by the Minister. There is no other way to describe it. How such power is exercised will depend entirely on the goodwill of the Minister. If we have a Minister who believes in local government and supports the idea of community involvement in the planning process, which is what local government ensures, then we have no fears from the legislation or the amendments. If we have a Minister who becomes a demagogue and seeks complete power from Macquarie Street, then this bill and the amendments moved by Reverend the Hon. Fred Nile will undermine local government to the point that councils will be left to collect garbage and look after water and council rates. Beyond that, councils will not have any real input into local community. If there were to be a debate about the removal of various tiers of government, there would be a much stronger argument for removing the State government tier before the local government tier.
This bill is an appalling piece of legislation in terms of its impact on the Local Government Act, local government operations in New South Wales and the powers of the Minister. I simply say to Reverend the Hon. Fred Nile: if he thinks the Minister does not achieve the type of power that has been contemplated in the debate, he need only look at his own amendments to see that the power if used improperly is absolute.
The Hon. PATRICIA FORSYTHE [10.31 p.m.]: As to the comments made by Reverend the Hon. Fred Nile on the powers of the Minister, I draw the attention of the honourable member to the explanatory note in the bill. Having listened to Reverend the Hon. Fred Nile in this House over many years, I know he is not a gullible person and that he understands statements by Ministers and others. I am incredulous at his position on this matter. How and why are we going to get these so-called planning assessment panels? The explanatory note states:
The Division provides that if the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation or its performance in dealing with planning and development matters is unsatisfactory, if the council agrees or if a report by the Independent Commission Against Corruption recommends such an appointment, the Minister may appoint a planning administrator …
The explanatory note states that the council's performance is based on the view of the Minister. I remind the honourable member that there is no definition of "unsatisfactory". It is a subjective view in the mind of the Minister. I will take it further and put it in the context of my local council, Ku-ring-gai Council, which is one of the local councils that has been mentioned in relation to this legislation. It is on the record that for the past few years the position of Ku-ring-gai Council on many issues of local development has been at odds with the view of the Minister for Planning. That is not to say the council's actions have been satisfactory or unsatisfactory. It has simply taken a different view about the community's requirements in local planning. The council has stood up to, first, the Carr Government and now the Iemma Government on a range of local planning issues, from density to regional shopping facilities. It has taken a fundamentally different view on a whole range of issues. One could say that the council was elected on such a platform. That is not to say its performance is satisfactory or unsatisfactory, but it is at odds with the view of the Minister for Planning. It is a classic example of a council that may lose planning powers and may see the appointment of a planning assessment panel.
Reverend the Hon. Fred Nile says that such appointments would only happen under certain circumstances and that the Minister would not take such action unless it was in the best interests of all parties. The history in my local area does not support that view. One could assume that within weeks of this legislation being gazetted Ku-ring-gai Council could see the appointment of a planning administrator or a planning assessment panel. Such action would be completely at odds with the local community and the local council which have tried to put forward an approach to planning in the area that reflects the views of the local community, as other councils have done in other parts of the State.
The council's plans may not be the general direction and may not be the view of the Department of Planning, the Minister for Planning or the Labor Government in this State. That is why we have a local democratic process and the election of councillors every four years. That is why we have a system of planning in New South Wales. The current legislation accords a role to local councils in making local plans and to the State through the Minister for Planning to administer the Environmental Planning and Assessment Act. That is as it should be. That is one of the clear reasons the Greiner Government was elected in 1988. If this bill is passed, as apparently it will be with the support of the Christian Democratic Party and others, then history will repeat itself. This will be one of the grounds upon which this Government will be thrown out of office.
Ms SYLVIA HALE [10.36 p.m.]: The Hon. Peter Breen said that so much is left to the discretion of the Minister and so much will depend on the nature of the Minister. For example, if the Minister is a megalomaniac, what impact will that have on planning in the State? Earlier I referred to the concerns of the Country Mayors Association about the Act and its request that the planning administrator or panel in some way be accountable and that the Minister does not have unfettered discretion to appoint whomever he wishes and to establish a panel without reference to any guidelines. The letter from the Country Mayors Association states:
The amended legislation allows the Minister to call in Development Applications on what appears to be an arbitrary basis. These applications are often very significant to local communities. Call-in guidelines and processes need to be clearly and objectively established. The views of the local communities need to be considered. The appearance of the direct political intervention in the land development sector in regional areas needs to be reduced not added to.
The letter refers to the practical implications of the Department of Planning calling in development applications. It states:
On a practical level, the Department of Planning does not currently have sufficient experienced, qualified development assessment staff to meet the workload. This has led to long assessment and processing times for regional applications. Inevitably local Councils complete a significant amount of the detailed local assessment with no assistance in cost recovery at all.
That is another feature of this bill. If the Minister imposes a planning panel or administrator, the local council, not the Minister or the department, will have to meet the costs. It is worth looking at the tendency of the Minister to concentrate power within himself. The Department of Planning web site has an archive of the number of matters that have been called in by the Minister for decision.
Between 2000 and 2004 there was in each year an average increase of 20 in the number of development proposals that were called in for decision by the Minister. But in the last year for which we have records, that is 2004-05, rather than that increase being on average 20, in fact the increase was 167. That means we are now up to more than 200 applications being called in by the Minister in the last year and, as I mentioned before, what the country mayors are concerned about—this has happened in the context of the loss of expertise within the department—are inordinate delays. The whole justification for this legislation is supposed to be the tardiness of councils in processing applications. But time and time again we hear from councils comments about the inordinate time that the department takes to respond to councils in either refusing, approving or varying proposals from councils.
Indeed, as evidence from the director general of planning indicated during a committee hearing as recently as last week, the department can say, in terms of large developments, that it requires two years in which to process some development applications and finish the approvals process. The department has said it needs a minimum of two years, or possibly three, to get all the approvals done, yet this is the same department whose Minister consistently flails councils because they do not process applications within 40 days. Of course, if councils do not process applications within 40 days, the developer has the right to go to the Land and Environment Court. Whether a council wishes it or not, the council then becomes embroiled in very expensive legal proceedings, yet the council is flayed for running up additional costs in defending itself in the proceedings.
The entire planning scheme in New South Wales works against the provision of sufficient resources and finance to local government. This bill, as it currently stands, just tips the balance further against the community and against local government.
The Hon. Dr PETER WONG [10.42 p.m.]: Earlier the impression was given that the panel would be independent. That is not the case. Apart from what has been mentioned by the Hon. Patricia Forsythe, the Minister can appoint a panel if he has deemed the council is unsatisfactory because of the manner in which a council has dealt with matters, et cetera. Furthermore the bill specifically mentions that the panel will include three to five members appointed by the Minister. The Minister also appoints the chairman of the panel. Furthermore a panel, in the exercise of its function, is subject to the control and direction of the Minister.
Reverend the Hon. Fred Nile: Except for development applications.
The Hon. Dr PETER WONG: Yes. I was going to say that. That is a very grey provision and Reverend the Hon. Fred Nile knows that. Imagine a panel being given the power to determine all matters except for development applications.
Reverend the Hon. Fred Nile: That is the purpose of the amendment.
The Hon. Dr PETER WONG: The Minister is scared that he will be accused of corruption. I understand that. I am not making that accusation. However, if the Minister has 90 per cent control, that is almost as good as 100 per cent. In case people accuse me of paranoia, I quote from a letter I received from a council that relates specifically to this point:
Amendments to Planning Consent Powers
The Bill threatens to take away Council's planning functions in relation to the assessment and determination of DAs. In situations where the Minister deems a Council to be under performing in terms of time taken to reach critical decisions the Minister has the ability to appoint a planning administrator or a planning assessment panel to exercise Council's current planning functions … The Bill provides no clarification in terms of how a Council's performance is measured nor does it require the Minister to consult with councils or provide reasons for his decision. The panel or administrator is also subject to the Ministers control and direction …
That last point is what I mentioned earlier. The letter goes on to state:
The Bill then gives the Minister the power to remove a democratically elected Council as consent authority and hand these powers to an undemocratically selected panel or administrator. The costs furthermore of setting up the panel/administrator are expected to be met by Council and the Bill provides no indication in terms of what limitations may be placed on these costs forced on Council by the Ministers decision to appoint a panel/administrator.
Reverend the Hon. FRED NILE [10.45 p.m.]: I will clarify a point made by the Hon. Patricia Forsythe, who quoted section 118 and said I was unaware that the Minister only had to be of an opinion. The precise reason why I moved two amendments was to change that, so that, after the bill is passed it will no longer be just a matter of the Minister's opinion. Amendment No. 6 shows that some of the statements made by other honourable members, suggesting that tomorrow the Minister could act peremptorily, are false. He will not be able to because amendment No. 6 states:
(6) The Minister may appoint a planning administrator or a panel for a reason set out in subsection (1) (b) only if the Minister has, by order published in the Gazette, provided heads of consideration for the exercise of power under subsection (1) (b), and has taken those heads of consideration into account.
There will be a buffer between the bare Minister's opinion and what ultimately happens, and the Minister will have to provide a regulation to that effect. Amendment No. 7 states:
(7) The Minister must, as soon as reasonably practicable after appointing a planning administrator or a panel, make the reasons for that appointment publicly available.
The provisos have been added to the legislation. It is no longer simply the words "is of the opinion". The provision will be qualified by those two amendments.
Government amendments Nos 1 and 2 agreed to.
Question—That Greens amendment No. 5 be agreed to—put.
The Committee divided.
Ayes, 6
| Mr Breen
Dr Chesterfield-Evans
Mr Cohen
Dr Wong
Tellers,
Ms Hale
Ms Rhiannon | |
Noes, 25
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Ms Cusack
Mr Donnelly
Mrs Forsythe
Miss Gardiner
Mr Gay
Ms Griffin | Mr Hatzistergos
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Oldfield
Ms Parker
Mrs Pavey
Mr Pearce | Mr Primrose
Ms Robertson
Mr Ryan
Ms Sharpe
Mr Tsang
Tellers,
Mr Colless
Mr West |
Question resolved in the negative.
Greens Amendment No. 5 negatived.
Question—That Greens amendment No. 11 be agreed to—put.
The Committee divided.
Ayes, 6
| Mr Breen
Dr Chesterfield-Evans
Mr Cohen
Dr Wong
Tellers,
Ms Hale
Ms Rhiannon | |
Noes, 2
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Ms Cusack
Mr Donnelly
Mrs Forsythe
Miss Gardiner
Mr Gay
Ms Griffin | Mr Hatzistergos
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Oldfield
Ms Parker
Mrs Pavey
Mr Pearce | Mr Primrose
Ms Robertson
Ms Sharpe
Mr Tsang
Tellers,
Mr Colless
Mr West |
Question resolved in the negative.
Greens amendment No. 11 negatived.
Christian Democratic Party amendments Nos 1 to 7 agreed to.
Ms SYLVIA HALE [11.01 p.m.], by leave: I move Greens amendments Nos 6 and 7 in globo:
No. 6 Page 6, schedule 1 [15], proposed section 94EE (4), lines 37 and 38. Omit all words on those lines.
No. 7 Page 7, schedule 1 [15], proposed section 94EF (6), lines 26-28. Omit all words on those lines.
Amendment No. 6 seeks to delete a clause that provides that a person cannot appeal to the court under this Act in respect of a determination of the Minister under this section. That refers to the levying of development contributions. Amendment No. 7 deals with section 94EF, which provides that a person cannot appeal to the court under this Act in respect of a direction of the Minister or a condition imposed by a consent authority or the Minister under this section. I find those two clauses utterly abhorrent because they remove the right of appeal. That is essentially undemocratic. Anyone, whether it is a resident, an incorporated body, a council or a developer, should have the right to appeal. These provisions destroy that right. I cannot understand how anyone who has any concern for the Westminster system and the division of powers could not possibly support a proposal that at least allows a person to appeal against a Minister's deviation from his powers and his failure to observe proper process. Deleting these two clauses will restore to the community the right to appeal against what is essentially the Minister's untrammelled discretion.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [11.03 p.m.]: The Government does not support these amendments. The certainty of infrastructure provision needs to be preserved.
Amendments negatived.
Ms SYLVIA HALE [11.04 p.m.]: I move Greens amendment No. 8:
No. 8 Page 9, schedule 1 [15]. Insert after line 17:
94EN Audit of Fund by Auditor-General
The Auditor-General is to audit the Fund, in the year it is established and in each year thereafter, as if:
(a) the Fund had been prescribed under section 44 (1) (b) of the Public Finance and Audit Act 1983, and
(b) the Minister had requested the Auditor-General to audit the Fund under section 45 of that Act.
This amendment relates to the establishment of a special contributions area infrastructure fund. This fund has been set up and into it will be paid the special contributions levies. The insertion of new section 94EN will require the fund to be audited by the Auditor-General. Again, if one is interested in accountability and transparency, to have the Auditor-General confirm that the funds have been spent in accordance with the Act is a minimal requirement. I would have thought that such a provision should apply in respect of almost any bill that concerns the collection or distribution of monies. It seems to me that the need for such a requirement is transparently obvious. We are talking here of significant amounts of money, millions of dollars, and at the very least it should be incumbent on members of this Chamber to satisfy themselves that those funds have been spent in accordance with the law. The only way that that can be properly and adequately done is by requiring an audit of the funds by the Auditor-General.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [11.07 p.m.]: The Government does not support this amendment. We believe it is unnecessary.
Amendment negatived.
Schedule 1 as amended agreed to.
Ms SYLVIA HALE [11.08 p.m.]: I move Greens amendment No. 9:
No. 9 Page 11, schedule 2 [1], proposed section 74F, lines 5-24. Omit all words on those lines.
This amendment relates to the Minister's ability to direct councils with respect to development control plans. Under proposed section 74F the Minister may direct a council to make, amend or revoke a development control plan. The council is required to comply with that direction and if it fails to do so the Minister may again make, amend or revoke that plan. In fact the Minister would stand in place of the council. The Minister in making, amending or revoking a development control plan [DCP] is not subject to regulations. The essential difference is that again, as with proposed section 94 plans, when councils produce development control plans they do so after considerable consultation with the community. Any DCP is put out for public exhibition and it is subject to prolonged discussion and potential amendment within the council itself, in light of the submissions it has received.
As a result of the amendments made to the Environmental Planning and Assessment Act last year, the Minister has prescribed that there may be only one development control plan [DCP] relating to any particular site. One of the few virtues of the changes is that development control plans now have a power similar to that of local environment plans. In the past, because DCPs did not have the power of local environment plans, if there was an appeal to the Land and Environment Court the court was at liberty to ignore the DCP in a way that it could not ignore an LEP.
So, in some ways, as a result of the previous set of amendments to the Environmental Planning and Assessment Act, the authority of development control plans has been enhanced, and I believe that could well be a good thing. But when the Minister, without any reference to the community, without any requirement to give reasons, and without being accountable, can revoke a council's development control plan—say, with regard to heritage issues, site set backs, exposure to noise or privacy considerations—and can blithely either reject any of the provisions of such a DCP or amend the DCP to impose conditions that are absolutely abhorrent to a council and would certainly be abhorrent to residents, and do so without any requirement for any public consultation, the only requirement being that it be the Minister's opinion that a change should be made, I believe that is the ultimate expression of an authoritarian, centralist view of the functions of the Department of Planning. Greens amendment No. 9 would remove the Minister's power to direct councils with regard to development control plans entirely from the bill.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [11.13 p.m.]: The Government does not support Greens amendment No. 9. The original lines need to remain in the bill because the provision is necessary to co-ordinate State and local planning controls.
The Hon. Dr PETER WONG [11.13 p.m.], by leave: I move Unity amendments Nos 1 to 4 in globo:
No. 1 Page 11, schedule 2 [1], proposed section 74F (5), line 22. Omit "not".
No. 2 Page 11, schedule 2 [1], proposed section 74F (6), lines 23 and 24. Omit all words on those lines.
No. 3 Page 12, schedule 2 [3], proposed section 118 (1), line 20. Omit all words on that line.
No. 4 Page 12, schedule 2 [3], proposed section 118. Insert after line 27:
(2) The Minister must not appoint a planning administrator or a panel (or both) to exercise functions of a council unless the council consents to the appointment.
Amendment No. 1 ensures that the Minister's planning decisions must be made in accordance with the regulations. The Minister therefore will not make a direction to a council that would otherwise be illegal for a council to fulfil, except with such ministerial direction. Amendment No. 2 ensures that only one development control plan made by the same relevant planning authority may apply in respect of the same land. Thus the Minister cannot cause two or more development control plans to exist on the one piece of land. Amendment No. 3, taken in globo with amendment No. 4, ensures that councils are fully in agreement with the Minister on the need for an administrator and/or a panel to take control. Amendment No. 4 ensures that the Minister can only operate under the bill with the agreement of the council affected.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [11.15 p.m.]: The Government does not support the amendments. In relation to amendment No. 1, the Minister needs the flexibility to intervene in a development control plan [DCP] quickly and efficiently in the case of inappropriate and contradictory policy provisions. In relation to amendment No. 2, such an amendment would have the unfortunate effect of necessitating amendments to other DCPs. It is not appropriate that other council DCPs should be affected as a result of intervention by the Minister. Amendments Nos 3 and 4 would remove the ability of a council to request the Minister to appoint a panel or an administrator. The amendments would also fail to allow the Minister to appoint in circumstances where, naturally, a council would be opposed to intervention, for example, in the case of an unacceptable performance, at the recommendation of the Independent Commission Against Corruption or due to corrupt conduct.
Greens amendment No. 9 negatived.
Unity amendments Nos 1 to 4 negatived.
Ms SYLVIA HALE [11.17 p.m.], by leave: I move Greens amendments Nos 12 and 13 in globo:
No. 12 Page 15, schedule 2 [3], proposed section 118AC, lines 1–11. Omit all words on those lines.
No. 13 Page 23, schedule 3 [5], proposed section 23. Insert after line 22:
(3) The Minister is, within 21 days of receiving a statement of business intent, to make the statement publicly available.
Greens amendment No. 12 relates to the cost of a planning administrator or panel. The bill permits the Minister, for any reason he deems fit, to remove a council's planning powers and instead appoint a planning administrator or planning panel. One of the more invidious features of the bill is that the Minister may require a council to pick up the costs of that panel or administrator. As has been pointed out frequently by various councils, and as well as by the Local Government and Shires Association, the administrator or panel may refuse a development application or fail to consider it in the 40 days allowable, or may simply make a determination that is wrong in law.
That would then lead to appeals to the Land and Environment Court. The Government is always emphasising how expensive and time consuming such appeals are. Unfortunately, a council would be in the position of having to pay for those mistakes on the part of the administrator or panel. The amendment ensures that if the Government is determined to appoint an administrator or panel, the Government should bear the costs associated with that, rather than expect a council, through its funds, which may be already strapped, to bear such costs.
By removing these clauses from the bill the Greens amendment is merely trying to transfer the cost of that panel to where it belongs, that is, back to the Minister. Greens amendment No. 13 requires the Minister to make public any statement of business intent. The Greens welcome the requirement for development corporations to produce an annual statement of their business activities. As that is basic business practice it should be standard practice for any government department, and especially any corporatised entity.
The thrust of this amendment is to ensure that the statement is made public. Once again, this totally uncontentious amendment tries to inject into the bill a small element of transparency and accountability. There is nothing exceptional in that requirement; it merely requires the Minister to make public any statement of business intent. Of course, that allows public scrutiny and comment on the foolishness, wisdom or otherwise of the business intentions of development corporations.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [11.20 p.m.]: The Government does not support these amendments. In relation to amendment No. 12, it would be inappropriate to defray the cost of a panel or an administrator. In relation to amendment No. 13, the statement of business intent would include commercially sensitive information considered inappropriate to publish.
Reverend the Hon. FRED NILE [11.21 p.m.]: The Christian Democratic Party raised this issue with the Minister and he pointed out that proposed section 118AC (2) states:
The Minister may do either or both of the following:
(a) exempt a council from payment of all or part of the remuneration and costs and expenses of the planning administrator or panel,
(b) resolve any dispute as to the amount of any such remuneration, costs or expenses.
I do not want to verbal the Minister but in a conversation he indicated that that might apply to smaller country councils and others that might not be able to pay those costs. That proposed section provides more flexibility than the approach adopted by the Greens. If it is automatic it is still within the discretion of the Minister.
Ms SYLVIA HALE [11.22 p.m.]: Reverend the Hon. Fred Nile failed to read what is in front of him. The bill clearly states:
The Minister may do either or both of the following ...
We again have this extraordinary accretion of power in the hands of the Minister. It is one thing to say that he, as a personal favour, might say to a small country council, "We will exempt you from having to pay this", but there is no requirement in the bill that he should do so. I refer next to this Government's treatment of councils and give as an example the amalgamation of country councils. Despite the strenuous opposition of country councils the Government rode roughshod over them and imposed amalgamations on them. In the past it has had no regard for small councils so, on the basis of its track record, why would we expect it to have any regard for them in the future?
Amendments negatived.
Schedule 2 as amended agreed to.
Schedules 3 and 4 agreed to.
Title agreed to.
Bill reported from Committee with amendments and report adopted.
Third Reading
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [11.27 p.m.]: I move:
That this bill be now read a third time.
The House divided.
Ayes, 19
Ms Burnswoods
Mr Catanzariti
Mr Costa
Mr Della Bosca
Mr Donnelly
Ms Griffin
Mr Hatzistergos | Mr Kelly
Mr Macdonald
Reverend Dr Moyes
Reverend Nile
Mr Obeid
Mr Oldfield
Ms Robertson | Mr Roozendaal
Ms Sharpe
Mr Tsang
Tellers,
Mr Primrose
Mr West |
\Noes, 18
Mr Breen
Dr Chesterfield-Evans
Mr Clarke
Mr Cohen
Ms Cusack
Mrs Forsythe
Mr Gallacher | Miss Gardiner
Mr Gay
Mr Lynn
Ms Parker
Mrs Pavey
Mr Pearce
Ms Rhiannon | Mr Ryan
Dr Wong
Tellers,
Mr Colless
Ms Hale |
Pair
Question resolved in the affirmative.
Motion agreed to.
Bill read a third time.
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