Environmental Planning and Assessment Amendment Bill 2008
Building Professionals Amendment Bill 2008
Strata Management Legislation Amendment Bill 2008

About this Item
Speakers	Sharpe The Hon Penny; Harwin The Hon Don; Hale Ms Sylvia; Ficarra The Hon Marie; Colless The Hon Rick; Deputy-President (The Hon Amanda Fazio); Moyes Reverend The Hon Dr Gordon
Business	Bill, 2R

ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT BILL 2008
BUILDING PROFESSIONALS AMENDMENT BILL 2008
STRATA MANAGEMENT LEGISLATION AMENDMENT BILL 2008

Page: 8073

Second Reading

The Hon. PENNY SHARPE (Parliamentary Secretary) [4.34 p.m.], on behalf of the Hon. Michael Costa: I move:

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

I now refer to the parts of the Environmental Planning and Assessment Amendment Bill dealing with development assessment. The Bill introduces five main areas of reform in the development process:

However, a new type of third-party review will be available for people directly affected by certain types of development. The aim is to ensure that councils exercise proper discretion when granting consent to development that would result in standards being exceeded or otherwise not complied with.

Council officers carrying out building certification work on behalf of councils will also have to be accredited by the Board. New categories of accreditation will be developed and introduced that will apply to council certifiers. The Board will be able to rely on a recommendation from the relevant council as to the person's competence and skills and the person will only be authorised to carry out work on behalf of the recommending council. Implementation of this reform will ensure that existing experienced council employees can be accredited.

To accommodate councils that do not have qualified staff the Board will be able to grant exemptions from these requirements in certain circumstances with the approval of the Minister.

These changes will increase accountability of council staff and community confidence in the qualifications of all practitioners responsible for administering the certification system.

For the first time the Board will accredit fire safety engineers. These accredited building professionals will be subject to the same disciplinary rules as accredited certifiers.

I note that the Legislation Review Committee has provided a report on the bills currently before the House.

The Minister for Planning has released the first set of exempt and complying development codes and more will follow and be subject to public consultation.

To facilitate these next steps there will be three implementation consultative bodies. The existing Complying Development Experts Panel will continue to develop the full suite of codes. This panel is made up of representatives of local council, certifiers, professional bodies and government agencies.

The existing Certifier Liaison Committee will continue to provide stakeholder input into implementation of the reform provisions. This committee is made up of representatives of local council, private certifiers and government agencies. The Minister for Planning will establish an Implementation Advisory Group with a broad representation of stakeholders to provide input on the broader implementation issues.

The Hon. DON HARWIN [4.34 p.m.]: The Asia Pacific is the fastest growing region in the world. Its gross domestic product will triple by 2030 and Sydney, as a major regional centre, is poised to benefit enormously from this growth. With 4.3 million people, Sydney is projected to grow dramatically in the next 25 years. Indeed, according to the eminent Monash University demographer Dr Bob Birrell, its population will grow by one million over the next 13 years. The city accommodates a network of globally competitive firms with specialisation in finance and insurance, property and business services, tourism-related industries, cultural, creative, multimedia and other information industries.

We have so much potential but the problem is we have a State that is being held back by a number of things: in particular, a regime of State taxes and charges the highest in Australia; anti-business policies such as the occupational health and safety arrangements and, coming to this legislation, a slow, cumbersome and overly bureaucratic planning system. The symptoms are all too obvious and the Minister has made the case for reform. The approval process is too long and too complex.

Simple and routine development applications are 60 per cent of all development but still take an average of 68 days to deal with. There are far too few complying developments, with only 11 per cent in 2005-06. Plan making is too slow. On average local environmental plans take five years and even minor corrections to them on average take as long as 196 days. Having correctly observed the symptoms and diagnosed some of the problems, the cure described by the Minister will only make the patient sicker. I thought my colleague the member for Pittwater put it eloquently in the other place last night when he said:

Moreover, so much more detail we do not even know about remains to be put into regulations, codes and guidelines, which may further slow down the process. These new codes for complying development may well be extraordinarily long and complex. While we will have some capacity through this House to deal with the regulations, there will be no capacity for this House to have any role in reviewing the codes and guidelines. We are now facing this planning mess because the Minister just does not listen. My colleague the member for Wakehurst observed, "It is very obvious to me that the so-called consultation about this bill has been largely contrived and lacking in transparency". Having failed to listen to those who know the system—its strengths and weaknesses—we now have this flawed bill. The member for Wakehurst went on to outline the Opposition's approach:

As Mr Hazzard says, the Opposition supports the concerns of those who are frustrated with the current planning system but it is not convinced that providing unqualified support for this bill would give important industry stakeholders an improved planning system in which to operate. Moreover, we are concerned about the propensity to centralise decision making in planning and disempower communities. It may be worthwhile to quote the member for Pittwater's summary of the position:

Ever since Labor came to power in 1995 it has sought to centralise power in environmental land use planning. First, prescriptive State environmental planning policies, such as [State environmental planning] policy 5 and [State environmental planning] policy 53, imposed development standards on local communities. Next, part 3A removed major projects with huge impacts on local communities from the purview of the democratically elected representatives of the community most directly affected. Now Labor seeks to remove from local government the major decision-making role on plan making and development assessment. The bill effectively completes the centralisation of planning power into the hands of the Minister for Planning.

The dangers of centralisation are clear and are compounded in this legislation by serious conflicts of interest and the impairment of proper process. The concerns are deeply held by some important stakeholders. For example, an urban planner of some stature, John Mant, retained by the Local Government and Shires Associations, has summarised the concerns as follows: widened opportunities for conflict of interest; the regulated selecting and paying the person who regulates them; one public body being accountable for the costs and actions of someone beholden to another public body; the exercise of a judicial function by people who are not provided with the normal judicial protections, such as the security of tenure and freedom from executive retribution; and banning the representation of people appearing before judicial-type bodies even when facing parties who can directly employ staff who are well-qualified, experienced advocates.

We will not alleviate concerns about the planning process in our State by introducing a bill that reduces transparency and raises probity concerns. The bill gives unprecedented discretionary powers to the Minister on matters such as the appointment of planning panellists, and their pay and conditions. Planning controls can be created without any public consultation. Planning arbitrators will be left open to undue pressure from developers who pay their fees. Planning panellists appointed on an ad hoc basis are open to undue pressure from the Minister who appoints them and determines their pay. Another problem is the increased costs incurred by local communities resulting from these new layers of bureaucracy. More development costs will be pushed onto local communities as a result of this bill. Local ratepayers will be forced to pay for planning panels, as well as the legal costs incurred by planning arbitrators. Proper consultation might have avoided some of these problems.

The elephant in the room in this debate is the relationship between money and politics: the role that the property industry plays funding Labor in the context of more centralized power focused upon the Minister. Let us be quite clear about the context of the debate. Property developers have made $4 million worth of donations to the New South Wales Labor Party in the period since the current part 3A was enacted. Ten of the biggest developers paid more than $1 million to the Labor Party during the period in which the Minister considered $1.5 billion worth of their proposals. The Minister currently has more than 300 major projects on his desk under part 3A, and Liberal Party research shows that 48 of the developers involved in those projects have donated to the New South Wales Labor Party. This demonstrates the appalling conflict of interest that the 2005 change to the legislation has brought about. New South Wales Labor has created a culture in which businesses believe they must make donations to Labor in order for their development proposals to reach the Minister's desk, or for them to eventually receive approval.

As the House knows, I was the mover to establish the Select Committee on Electoral and Political Party Funding, of which I am now the Deputy Chair. Recently I visited Britain to discuss possible changes to our election and party finance regime, and I outlined the problem we have with perceptions of undue influence and this culture of money and politics. The key point made by my eminent British interlocutors, such as Sir Hayden Phillips and Professor Ken Ewing, was: there was no point trying to deal with this problem just from the perspective of reform of party and election finance; you had to deal with the problem through planning legislation. Sadly, we have no such solution in this bill. It purports to depoliticise the planning system and, by implication, reduce the scope for donations to parties influencing the key decision maker, the Minister.

However, at its core I think there is a growing and well-founded scepticism about whether this bill will clean up planning. Many observers fear that bodies like the Planning Assessment Commission and joint regional planning panels will not be far removed from the status quo. Instead of the Minister making the decision, it will be his or her appointee from an approved list. As my leader, Barry O'Farrell, is fond of saying, this State is already pretty much run like a family company by the Labor Party. Its cronies infest every level of bureaucracy, as well as its boards, commissions, committees, tribunals, panels and the like. It is easy to be sceptical about how much integrity these bodies will display when their members are subject to the whim of ministerial approval for their continued livelihood. They do not have the safeguards that are associated with, for example, judicial independence, as I outlined earlier when I referred to Mr Mant's remarks.

I now turn to some of the other initiatives in schedules 1, 2 and 3 and some other concerns the Opposition has. Among the consequential amendments outlined in schedule 1 is a change to the Heritage Act 1977. Schedule 1.4 repeals part 5 of the Act, thus removing the role of the Heritage Council in reviewing proposed environmental planning instruments that effectively lessen the heritage protection offered to heritage items. Furthermore, unelected planning arbitrators will have the opportunity to make merit decisions on items of local heritage, which will include making orders for the demolition of heritage items. Rather than secure heritage items, the bill will put them at risk.

Schedule 2, which deals with development assessments, contains amendments relating to independent hearing and assessment panels [IHAPs]. Independent hearing and assessment panels allow professional planners, architects and the like to hold hearings, let the public have their say, and then refer decisions back to council for final consideration. Under the bill these panels will be non-compulsory and advisory. Independent hearing and assessment panels may be of some benefit but they can actually be implemented now—and have been put in place by some councils. Therefore it is unclear why such a provision is needed in the bill. Given that independent hearing and assessment panels are already provided for elsewhere, there is little to be achieved.

For development applications up to $1 million arbitrators will determine whether or not a development fits within a new range of complying developments which will be detailed at some time in the future in regulations, codes or guidelines. The Local Government and Shires Associations and many community groups have made the point that there will be limited appeal rights if people are unhappy with the decision of the arbitrator. Only the applicant will be able to appeal to the Land and Environment Court or the joint regional planning panels. The latter option adds confusion and there are no guidelines as to how the appeal will be conducted if the applicant chooses to go to the Joint Regional Planning Panel.

Developments that the Minister considers "major developments" will be referred by the Minister to a new planning panel called the Planning Assessment Commission [PAC]. Again the Minister appoints the people to this commission and therefore has direct control, in addition to being in a position to determine what developments are considered "major developments". There are no current guidelines on how the Planning Assessment Commission will operate. Will there be procedural fairness and due process? What will amount to a "hearing"? The latter question is important because if the Planning Assessment Commission has a hearing there will be no appeal rights to the Land and Environment Court. Above the Planning Assessment Commission there will be an entitlement for the Minister to determine what is and what is not "critical infrastructure" and he will reserve the right, as he now has, to determine those issues.

Schedule 3 deals with changes to development contributions. Under the bill local infrastructure contributions will be replaced by community infrastructure contributions, and councils will be limited to community infrastructure contributions for key community infrastructure as defined by the regulations. Further, new part 5B provides for State infrastructure contributions, planning agreements, and development contributions for affordable housing. The current structures for raising contributions from developments are considered by important stakeholders to be inequitable and unreasonable. The bill will do nothing to address these apparent inequities because there are insufficient guidelines for the State infrastructure contributions.

Local government has expressed a great deal of concern about the collection of section 94 contributions, which goes to the cost transference between the State Government and local government. There is a complete non-existence of partnership and dialogue between the State Government and local government but we need both. The State Government should recognise that the 152 councils around the State are at the front line of delivering services to local communities. Those councils need support and recognition and a Government that will discuss issues with them. In October or November last year, when the Government was looking for a headline, it announced that it would reduce section 94 levies and the State infrastructure contribution levies by 10 per cent. It is now June and the Government has provided no clarity about how that will be achieved.

They are the Opposition's concerns on a number of quite important matters and, as the shadow Minister has made clear in another place, the volume of those concerns dictates that, despite our genuine wish for root-and-branch reform of the New South Wales planning system, the point has been reached where this attempt at reform can no longer be supported. Respectfully, we disagree with professional and industry stakeholders who are supporters of reform. They are prepared to try something new despite the flaws in the bill. We see the volume of amendments already tabled, and the vast number of others that have been floated by stakeholders that have identified matters that need addressing in the bill—not just the draft—as indicative of the fact that there should be an upper House inquiry into the bill. The Opposition is instinctively wary about a Committee stage with a bill like this, where there is a substantial risk of adding to the level of complexity. The best course is an inquiry, which is an initiative with widespread support that members will be aware of from reading their emails. I formally move:

I hope the amendment will have the support of the House. The Opposition believes this is the best way forward in trying to maintain momentum towards effective and appropriate reform and the renewal of New South Wales planning laws.

In the event that we are unsuccessful, I wish to make it clear that the Opposition believes no amount of amendments will fix the bill and, regardless of the merits of individual amendments, we will not be in a position to support them. There is one caveat. While, respectfully, we have agreed to disagree with those advocates of reform who believe we should persist with this flawed bill, we are willing to cooperate on any worthwhile initiative to ensure that implementation is not impeded. In particular, we put the Government on notice that we would be prepared to move, or support another member moving, an amendment that would formalise the undertaking Minister Sartor gave to planners recently concerning the establishment of an implementation advisory group or committee, which would include professional advice from architects, planners, environmentalists and the like.

We accept that some key stakeholders want to give the bill a go and do what they can to make it work. Good luck to them, and they will have the Opposition's best wishes. But we remain sceptical. A committee inquiry has a better chance of rescuing reform. Failing that, we will oppose the bill and continue to work on our plans for a better planning system for New South Wales, legislated and implemented by a Government led by Mr Barry O'Farrell and Mr Andrew Stoner after the next general election.

Ms SYLVIA HALE [4.58 p.m.]: I lead on behalf of the Greens. The Greens do not support the bill but support the call for it to be referred to an inquiry. The need for an inquiry into the impact of the bill is made clear in the report of the Legislation Review Committee. That cross-party committee identified issues relating to the bill, including that it trespasses on "individual rights to have views heard and represented", "rights to procedural fairness and access to justice", and "personal rights and liberties" relating to compulsory acquisition of property. The committee expressed concern that the bill "may erode the rule of law with regard to the principle on the privity of contract", and that it grants the Minister "unfettered discretion" and "insufficiently defined administrative power". A further concern was that "individual rights and liberties appear to be unduly dependent on non-reviewable decisions".

It is extraordinary. This is the first time I have seen the Legislation Review Committee express doubt about a piece of legislation on so many significant grounds. The Legislation Review Committee report spells out clearly why an inquiry into this bill is necessary. Anyone who has read the report would need no further justification for supporting a move to send the bill to a committee. Even though the Minister may have given undertakings, should the bill be passed unamended people will be deprived of the right to have their views represented. They will be deprived of the right to procedural fairness and access to justice. Individual rights and liberties will be unduly dependent upon non-reviewable decisions. The bill will affect billions of dollars of developments. It will affect the rights and amenity of every citizen in this State. It would be an abrogation of the role of this House of review to allow such a complex and potentially damaging piece of legislation to pass without the highest level of scrutiny.

While the bill has some positive elements, to which I will refer later, the negative elements far outweigh the positive ones. Overall, the bill is not in the interests of the people of New South Wales. This bill reflects previous bills that were introduced by the Government that have undermined the objects of the Environmental Planning and Assessment Act. It continues the ongoing pattern of planning law changes in recent years. That pattern is that in the period leading up to an election the property development industry pours millions of dollars into the coffers of the New South Wales Labor Party, which uses those millions of dollars to buy saturation television advertising during the election campaign. That advertising makes no mention of the Government's intentions in relation to the planning laws should it be re-elected. During the 12 months after the election, the newly elected abor Government presents a set of so-called reforms to the planning laws, which are based on the latest wish list from the property development industry.

That is what happened with the 2004 State election, and that is what is happening now. The property industry poured more than $5 million into the New South Wales Australian Labor Party coffers in the lead-up to the 2004 election. The pay-off for the property industry was the 2005 amendments to the Environmental Planning and Assessment Act, which introduced the notorious part 3A. The 2005 amendments, which were not mentioned during the 2004 election campaign, dramatically undermined environmental and heritage protections and allowed the Labor planning Minister to bulldoze community objections to any developments he chose to call in. They delivered enormous power into the hands of the planning Minister, while removing appeal rights and proper scrutiny of the use of those powers. Not surprisingly, developers queued up to throw more money at the Labor Party, as the planning Minister called in hundreds of developments and proceeded to approve developments that previously would have been refused.

Part 3A has been a bonanza for both the developers and the New South Wales Australian Labor Party. Following the 2005 amendments, under part 3A of the Environmental Planning and Assessment Act almost $3 billion worth of developments by 13 development corporations, which are political donors, have been approved. In that period, those same developers have given more than $2 million to the New South Wales Australian Labor Party. In fact, they got $3 billion worth of developments in return for $2 million worth of donations. I marvel at how cheaply this State is bought. In the period 2005-06, 28 projects were refused under part 3A. Not one of the companies that had its projects refused was a political donor. Is it any wonder that the development industry has come back looking for more or that the Labor Government has fallen over itself to give them what they want? We come to the 2007 election, and we see history repeating itself. It is like Groundhog Day for the planning system. Once again we see the pattern of huge donations from developers to the Australian Labor Party before the election. There is no mention of changes to the planning laws during the election campaign or the developer wish list becoming law after the election.

In the lead-up to the 2007 State election property developers donated well in excess of $6 million to the New South Wales branch of the Australian Labor Party—or should I say that the developers and the New South Wales Australian Labor Party disclosed that amount of payments. Given the evidence that has come to light that many developers and the New South Wales Australian Labor Party have failed repeatedly to disclose payments, who knows how much money developers actually paid to the New South Wales Australian Labor Party and Australian Labor Party candidates in seats around New South Wales. The Minister was strangely shy in acknowledging the enormous favours that those developers did for the Australian Labor Party. He did not seem so shy when he held his notorious fundraising dinner in February 2006, which the State's biggest developers attended and threw in huge amounts of money to make sure that their good mate Frank was returned to power. Developers and lobby groups such as the Property Council of New South Wales and the Urban Taskforce have been driving this bill from day one.

Which developers and backers of this bill were at Mr Sartor's re-election dinner and how much did they donate? We know they included in addition to the Property Council of New South Wales, Leighton Holdings, Stocklands Group, Endeavour Consulting, Medich Property Group, Mars Australian Developments, Transurban, Australand, Johnson Property Group, John Boyd Properties, Terrace Towers Group, Mirvac, Macquarie Bank, Multiplex, Grocon, FDC Building Services, Dasco Constructions, Hardie Holdings, Westfield, Primrose Hill Development, Rosecorp and Transfield. Let us not forget the Wideform company, which featured so prominently in the inquiry into corrupt conduct by Labor councillors, council staff and developers associated with Wollongong City Council. The New South Wales Australian Labor Party collected more than half a million dollars on that one night. The Minister for Planning is feted at his re-election dinner by the State's biggest property developers, who tip hundreds of thousands of dollars into his party's campaign funds. We are supposed to believe there is absolutely no link between this event and the developers' wish list that is now before us.

Is it any wonder that the New South Wales planning system is held in such disrepute? Is it any wonder that it is seen as little more than a State-run extortion racket designed to channel enormous amounts of developer money into the Australian Labor Party campaign slush fund in return for favourable development application outcomes and the most pro-developer legislation in the past 30 years? The bill before us must be assessed in the context of the millions of dollars of payments from property developers directly to the New South Wales Australian Labor Party. We must ask ourselves if this is the pay-off for those payments. We should also ask ourselves what this bill tells us about the modern Labor Party.

It is highly instructive that this bill was introduced on the same day that the Premier gave notice of his bill to privatise the State's electricity system. I am sure that 14 May 2008 will go down as the day the Labor Government turned its back on working people, the trade unions and the Australian Labor Party's own grassroots members and embraced instead the property developers. With this planning bill and the electricity privatisation bill the Labor Party is clearly demonstrating for all to see that it is no longer the party of working people and their unions, it is now the party of property developers and their political donations. And how do we know that this bill is a property developer's wish list? We know because the property developers have told us so.

Earlier this week the New South Wales Coalition for Planning Reform, led by the property industry's cashed-up lobby groups, distributed what it called a planning reform scorecard. In this scorecard the developers' lobbyists compared this bill with their own wish list, and what does it show? It shows that the Government has delivered 12 of the 14 items the developers asked for. The so-called consultation process surrounding this bill has been a sham from the beginning. It started with a forum organised by the developer lobby groups and has continued with the tightly controlled and bogus process illustrated by the Government—and reiterated by the Minister at the crossbench briefing earlier this week—in the decision to refuse leave to have a motion discussed that would result in the release of submissions received in response to the discussion paper and the exposure draft of the bill and the Government's desperate opposition to allowing the bill to be examined by an inquiry. The Government will not release the submissions because it knows that those submissions overwhelmingly oppose key aspects of the bill.

The Government's opposition to the bill being examined by an inquiry is telling. The Minister has been crowing for months that this is the most comprehensive set of changes to the planning laws for 30 years. These changes will impact on billions of dollars worth of developments and the environment and amenity of almost every citizen in this State, yet the Government insists the bill must be pushed through without scrutiny. There is no other area of law that should be more subject to scrutiny, because the New South Wales planning system is corrupt. There is evidence of corruption at all levels of the planning system and the public views it with enormous suspicion.

Participants in the planning system make huge payments to political parties. At the same time those parties, Ministers or councillors are determining their development applications. Given the billions of dollars that are at stake, the millions of dollars in payments to the New South Wales Australian Labor Party, the institutionalised conflicts of interest and the proven corruption in the current planning system, this bill deserves the fullest scrutiny, and that is the role of an inquiry.

I now turn to specific aspects of the bill. As members are aware, the Greens have 90-odd amendments to the bill, which we will move at the Committee stage, when we will deal in detail with the minutiae of the bill. The first aspect I refer to is community participation. In his agreement in principle speech on this bill the Minister made a reference to the introduction of the Environmental Planning and Assessment Act 1979. He praised the Act, saying it "led the nation". Then he commented:

It takes an extraordinary level of shamelessness to offer such praise for an Act at the same time as you are introducing a bill to gut it. This 2008 bill, like the 2005 and 2006 bills before it, deliberately and blatantly undermines key objects of the 1979 Act. In introducing the 1979 Act the then Labor Government declared that the legislative framework for environmental planning in 1979 was unsatisfactory because of "its failure to give members of the public any meaningful opportunity to participate in planning decision making".

This was the essence of the bill. It was designed to provide members of the public with meaningful opportunities to participate in planning decision making. References to the desirability of including the public in the planning process recur throughout the 1979 second reading speech. The Government was explicit about its intent and summed it up in the following statement:

That was the Government's intention in 1979, and it is that intention that this current Government is hell-bent on undermining. The Environmental Planning and Assessment Act 1979 emerged from overwhelming public concern and anger about the way developers were defacing the city, ignoring planning rules, ignoring the legitimate rights of the community and carrying on as though they owned the place. The community could see that the system was corrupt and demanded that it be fixed. The 1979 Act emerged from an extended community campaign of green bans, protests and sit-ins that succeeded in protecting some of the most precious of the city's heritage districts, even at the cost of the life of at least one of the leaders of the campaign, Juanita Neilsen.

This bill has the opposite objective to that groundbreaking 1979 bill. Labor is no longer committed to giving the public a say in developments; its objective now is exactly the opposite. This bill is all about removing the public from the planning process and once again handing development in this State over to the developers who so handsomely fund the party's re-election campaigns. The provisions of this bill relating to development approvals and exempt and complying developments are deliberately designed to exclude public participation—to deny community members the right to have a say about the suburbs in which they live and work. These provisions of the bill further undermine the environmental and heritage protections. They have alarmed the National Trust, which recognises the threat they pose to the State's heritage.

The Government's review of the Heritage Act has made it harder to get heritage listings and easier to remove heritage listings. This bill will mean that a developer can knock down an historic building that does not have a heritage listing without anyone knowing about it beforehand other than the private certifier the developer has employed to give the demolition the green light. The bill takes us back to the bad days of the 1970s when beautiful and historic buildings like the First and Last Hotel at Circular Quay and Rose's Emporium at Petersham were knocked down without notice by unscrupulous developers.

Is it any wonder that Jack Mundey, the former Secretary of the Builders Labourers Federation and instigator of the green bans, recently commented that on issues of planning, heritage and environment this Government is the worst since the corrupt Askin regime of the 1970s. The bill is also an attack on local government. Section 5 (b), "Objects", of the Environmental Planning and Assessment Act is "to promote the sharing of the responsibility for environmental planning between the different levels of government in the State". Yet this bill has the exact opposite effect.

It seeks to remove responsibility for environmental planning from local councils while imposing the costs of the replacement system on those councils. The State Government gets all the power with none of the cost; the councils get all the costs with none of the power. This bill is a blatant grab for power by a Minister who has abused the power he has previously seized for himself. It rips control over most developments away from elected local councils and centralises it in the hands of the Minister and his hand-picked panels. At the same time, it adds injury to insult by making local councils responsible for paying the costs of the Minister's new panels and planning arbitrators.

The bill also centralises control over development levies in the hands of the Minister and once again provides little or no scrutiny or opportunity for review of the way the Minister uses or abuses these new powers. Another concern about the bill relates to the way it further entrenches conflicts of interest and provides a climate conducive to further corruption. But that has, of course, been a hallmark of this Government's changes to the planning laws.

The introduction of private certification was a grave mistake that has seen many individuals and councils pay dearly for shoddy or corrupt work by unscrupulous certifiers. The Government's response is to extend the opportunities for such shoddy or corrupt activities to cause pain to individuals and great cost to the community by allowing private certifiers to determine whether proposed developments meet the promised new compliance codes. It is obvious to everyone that there is a fundamental conflict of interest in a certifier being paid by a developer to decide whether a development proposal complies with a code.

The Hon. Duncan Gay:

Ms SYLVIA HALE:

The Hon. Duncan Gay:

Ms SYLVIA HALE:

Similar concerns arise with the Government now wanting to introduce private planning arbitrators. Should the House not support referring this bill to an inquiry, I will be moving a range of amendments to address in detail these and other concerns about the content of the bill.

As I mentioned earlier, the Greens believe that some aspects of the bill are positive. Unfortunately, their primary purpose is clearly to sweeten an otherwise unacceptable pill. We believe that the provisions relating to places of public entertainment are generally positive. Similarly, many of the provisions in the cognate bills are good. The Greens support the Strata Management Legislation Amendment Bill 2008 and the Building Professionals Amendment Bill 2008, which form part of this package of cognate bills, although we believe that they should also be referred to the inquiry so that all issues can be considered as part of that inquiry.

However, the Strata Management Legislation Amendment Bill 2008 does not go far enough. In what I am about to say, I acknowledge the contribution of Greens City of Sydney Councillor Chris Harris in informing the Greens' position on this particular bill. There is something of a parallel between the Strata Management Legislation Amendment Bill 2008 and other recent fair trading bills. Typically, we see a very lengthy period of review, followed by numerous reports and stacks of submissions, yet all of this activity generates only a slim piece of legislation.

The Strata Management Legislation Amendment Bill 2008 amends the Strata Schemes Management Act 1996 and the Home Building Act 1989. It improves the current legislation in the following ways. The existing provisions in the Strata Schemes Management Act that govern on-site caretakers are being amended to make it clear that the provisions apply to anyone undertaking the role of caretaker regardless of whether they use a title such as "building manager" in an attempt to avoid the provisions.

An amendment will remove the exception relating to the developer being able to make by-laws covering parking so that such by-laws can be made only after the expiry of an initial period, when other owners besides the developer are able to vote on the proposal. That will prevent the outrageous practice of developers removing the right of owners to exercise their vote by requiring them to assign their proxy to the developer or some other person. This is an important amendment because it will prevent a developer being appointed as a proxy or casting a proxy vote pursuant to the terms of a sale contract. Persons standing for election to the executive committee must disclose any connection they have with the developer or caretaker, such as if they are related to them, married to them or have a relationship with them, or are in their employ or in another financial arrangement with them.

Finally, an amendment to the Home Building Act clarifies that an owner in a strata or community scheme can notify the Office of Fair Trading of a building dispute in relation to common property or community association property and that the inspector can access the premises. The amendment makes clear that the inspector cannot be prevented from carrying out an assessment of disputed building or specialist work if requested to do so by an owner and that caretakers and other persons who control access to areas of the common property will also be required to facilitate the officer's visit and inspection.

While all of these provisions are positive, and the Greens support them, I will be moving amendments relating to length and transfer of contracts. I would have liked to move additional amendments to improve strata management, but I am constrained from doing so by the narrow focus of this bill. Other areas of strata management that need urgent attention are the mandating of independent assessors for defects, qualifications for caretakers or building managers and office bearers, and model by-laws to improve the sustainability of strata developments. The Greens support those sections of the Building Professionals Amendment Bill 2008 that increase regulation of private certifiers. We do not support those sections of the bill and the principal bill that seek to extend the role of certifiers to exempt and complying development.

I will conclude my comments by returning briefly to the principal bill. I was recently provided with comments about this bill by a very concerned senior planner. That planner makes the point that councils will have to pay for all the panels and arbitrators and indemnify them for decisions that are not within the council's control. The senior planner made the following comments:

You don't have to look far into the history books to see why quality Government control and regulation of development and building is required. Indeed in the last weeks thousands of Chinese school children and others were crushed under tonnes of shoddy building debris.

Don't we learn from history!

This is why our Government has an ethical responsibility to pay for the service of qualified planners, building surveyors and environmental health officers. If it does not get done correctly in the first place, death and destruction are inevitable, as history has proven. Privatisation of regulatory functions has never been the solution to maintain good outcomes for society. If this Government thinks that the corruption of Wollongong is bad, and the outcomes poor, wait until we have 10 years of private development approvals, complying and exempt development, as proposed by these reforms.

Any amendments I could suggest would be nothing other than tinkering with fundamentally ill-conceived legislation that will deliver nothing but environmental harm to our communities.

Look at the Report Upon the Quality of Buildings of July 2002, being the outcome of the Parliamentary Joint Select Committee inquiry into the Quality of Buildings. If privatisation of building approvals and inspections in New South Wales failed as a result of the 1998 reforms (as that Report demonstrated) then removing local democratic and administrative oversight of development approvals (open to significantly greater corruption pressure) is even less likely to work.

The planner concludes:

In conclusion, the Greens support the referral of the Environmental Planning and Assessment Amendment Bill 2008 and the cognate bills to an inquiry. We see no compelling reason why such a bill should be rushed through Parliament without proper scrutiny. We see no good reason why such a bill should not be subject to detailed scrutiny by way of an inquiry. We see many good reasons—in fact, millions of good reasons—why a bill that sets out to deliver the agenda of the financial backers of the Labor Party at the expense of the State's residents, heritage, environment, public safety and amenity should be subject to the utmost scrutiny.

The Hon. MARIE FICARRA

That is exactly what this Coalition believes should occur if there is not a complete rejection of this ill-conceived legislation, which is being pushed through the Parliament in great haste. It was introduced at the same time as the announcement of the proposed privatisation of the electricity industry, and now it is being pushed through with undue haste and without consultation on the very day that the budget was delivered. The lower House was forced to sit until after 2 o'clock this morning to pass the bill. That is quite an extraordinary state of affairs. Today's Sydney Morning Herald reports that Minister Sartor attended the Shires Association Annual Conference this morning and accused its sister organisation, the Local Government Association, of being "slow and dumb". The President of the Shires Association, Councillor Bruce Miller, said that parts of this State Government are malicious and dishonest. This is incredible behaviour.

The Hon. Duncan Gay:

The Hon. MARIE FICARRA:

the leadership of the association [is] The slowest to ship in the convoy. You'll never get to the other side of the ocean that way, I'm telling you.

The Minister went on to say:

This is quite outrageous and disrespectful behaviour by the Minister, who is probably the least popular Minister of this Government—perhaps even of any government. His name recognition is extraordinarily high for all the wrong reasons.

As a former local government councillor for more than 16 years and mayor of Hurstville city for some of that period, it is clear to me that our planning Act needs a major overhaul to restore power to local communities and to prevent power from being centralised with the Minister for Planning, Frank Sartor. Under these provisions, property owners will no longer have to apply for council permission to demolish or renovate historic houses or buildings if the premises are not listed as heritage items. Changes to the Heritage Act will make it more difficult to list buildings and make it easier to have them removed from the list. There will be less community consultation and fewer appeals rights, and a shift of power from councils, residents and the Land and Environment Court to the private sector. A huge burden will be placed on local councils.

The Minister's planning changes will give this Labor Government more control over every level of the planning approvals process in an environment already heavily weighted in favour of Labor's developer mates. Minister Sartor's fingerprints will be on all appointments: the Planning Assessment Commission [PAC]; joint regional planning panels; up until recently, arbitrators—we ow hear that the Department of Planning will be appointing them; and planning administrators. With the exception of the Planning Assessment Commission, Minister Sartor can fire any of the members he has appointed if he does not like the decisions they make. The Planning Assessment Commission allows no recourse to the Land and Environment Court if an application is refused. Whatever happened to natural justice in this State? It is inequitable and unjustifiable that appeal rights that apply for other levels of developments are being removed for developments costing in excess of $50 million. If corruption is to be avoided, development applications over $50 million should automatically go to the commission without ever reaching the Minister. Furthermore, the panels should be controlled by the director general of the department or a parliamentary committee, not by the Minister.

Labor Party donations have flourished as a consequence. The Sydney Morning Herald of 26 May reported that the Government is still selling access to senior Ministers for more than $100,000 at Labor "Business Dialogue" private boardroom lunches, despite pledges from the Premier that he would clean up this State's election funding system, which has become an albatross around the Government's neck. The Executive Director of the Public Interest Advocacy Centre, Robin Banks, had this to say on the matter:

She dismissed suggestions from the Premier's office that he offered equal access to the public. She went on:

Of course, we know that. The glossy promotional brochure flaunts access to chief of staff briefings. Companies or individuals wanting access must pay premiums from $110,000 for a "Foundation Partner" package, through to an "Event Partner" package at $59,850, an "Associate Partner" package at $22,000, down to the humble "Executive Partner" package at $13,750. It is good to see that the Labor Party in this State is listening to community sentiments. I make the following prediction: It will not matter how much developer money is thrown at the Labor Party at the next election in March 2011 because this Government's days are numbered. Let us not forget that when Minister Sartor announced the review of the bill before us today, interested parties had to pay $250 a head for a consultation. The forum attracted 600 attendees. Sadly, not too many humble householders attended that consultation.

When the November 2007 discussion paper was issued, approximately 530 submissions were submitted but not one was ever made public. Not one of the submissions has ever been published on the department's website—just like the review of the Heritage Act last year, when over 200 submissions were received but not one was published. What a process! Where is the transparency and accountability that the community deserves? The Government intends to let Labor fundraising efforts proceed unimpeded in the lead-up to the 13 September 2008 local government elections. Proposals to channel political donations through party headquarters, union dues and memberships rather than individuals will obscure rather than prevent patterns of lobbying influence. Are we to believe that the property company executive who paid thousands of dollars at a Labor fundraiser to have lunch with Minister Sartor did not discuss his or her specific projects?

We have had the Wollongong sex and gifts for development scandal, documents withheld from Parliament over the Lower Hunter Regional Strategy, the Transport Worker Union's money-making roundabout, and members of Parliament failing to disclose donations of $50,000 from developers. No wonder the public have lost confidence in our democratic system. In the Government's current review of planning laws there has been very little public consultation. We have received thousands of emails, and they continue to be sent to us if we do not reject this legislation or have it referred to a parliamentary or upper House inquiry; we will continue to be inundated night and day. The level of awareness of this legislation is extremely high. I have never known anything like it. Communities are outraged at measures by Labor to take away their rights to comment upon and determine what they want for their local environment and residential amenity. The Minister's own department is critical of this legislation, and has suffered more than 20 resignations, including resignations from senior planners. The email boxes of members of both Houses are flooded daily with messages from hundreds, if not thousands, of concerned citizens opposing the legislation.

An inquiry by this House is required to allow the community, local councils, planners and surveyors to have a say, in order that, at the end of the process, legislation superior to that before us today is produced. Along with so many, the New South Wales division of the Planning Institute of Australia has been critical of the short time frame for review and consultation involved in the consideration of this far-reaching bill. I shall read from a letter sent by the institute to all members on 26 May 2008 in which it nominated 17 areas of concern that I want the Minister to address in his reply to this debate. The Local Government and Shires Associations commissioned a review by John Mant, a highly respected lawyer and town planner who designed South Australia's planning laws and rewrote the New South Wales Local Government Act. The review found the expanded role of planning panels and arbitrators could open the door to greater pressure from developers, interest groups and politicians, and could produce more avenues for political donations. The arbitrators would be a costly duplication of process for local councils. I congratulate the Local Government and Shires Associations on its letterbox, website and general media awareness campaign against the Government's planning reforms. The campaign is entitled:

Three Strikes for Local Communities—How the New South Wales Government wants to take control of local planning. Strike 1; Councils lose funds for community services (via local S94 contributions powers being stolen from them). Strike 2: Private companies approve local development applications. Strike 3; Neighbourhoods lose their character!

The Local Government and Shires Associations have called on this House to conduct an inquiry into this far-reaching legislation so that the views of their member councils and the communities they represent can be considered. Another major concern raised by communities is the Minister for Planning's power to call in an application under part 3A of the Environmental Planning and Assessment Act as a development of State significance. This provision removes the power of communities and councils to have a say in their future. Again the public make a link with political donations from the big end of town! For example, Willoughby Council was short-changed by $27 million for land forcibly acquired by this Government in 2004 in order to sell it off to developers as part of a public-private partnership, resulting in more apartments alongside Chatswood train station. The ratepayers of Willoughby have had equity taken away from them for an extremely poor return. The Government has badly treated each and every resident in that council area.

With development applications valued at up to $1 million, arbitrators will determine a new range of complying developments, but we know nothing of the detail. Will there be provisions for procedural fairness and due process? To keep costs in check and approval time frames shortened, the Coalition would like more resourcing of arbitrators and mediators in the Land and Environment Court. Indeed, there is much concern about the lack of detail regarding complying development categories, and many planners fear that the resulting regulations, codes and guidelines will be complex and costly. The unity of concern that the Minister has created in the community is most pleasing. The proposal to allow private certifiers to approve minor non-compliances has been deleted, and that is pleasing because the process was open to corruption.

Community members have seen the way in which political donations impact on a Minister's decision when calling in a development. They have noted that there appears to be no formal method of disclosure requiring the Minister to declare whether the applicant for a development has made a contribution to the political party to which the Minister belongs. Greater disclosure requirements should have been included in part 3A as recommended by the Independent Commission Against Corruption in September 2007. It stated:

The Commission believes that if the Minister is dealing with an application made by a political donor, higher levels of transparency and accountability are warranted

And further:

Persons submitting development applications or rezoning proposals to the Minister for Planning are to declare any political donations they have made to the Minister or to his or her political party ICAC urged proposals lodged with the Minister by political donors should become designated development and thus subject to a Commission of Inquiry, an expert report, or the possibility of a third party appeal.

The Premier and Minister Sartor continue to ignore the critical eight-month-old Independent Commission Against Corruption recommendation that proposed the automatic referral of development applications from political donors to an arms length approval process. Minister Sartor's draft legislation allows the Minister to decide whether or not to refer a project to the proposed new Planning Assessment Commission despite the Independent Commission Against Corruption recommending that development applications from political donors should be determined independently.

It is alarming to note the Government's proposal to expand the role of private certifiers to include a capacity to approve development applications as well as oversee building construction. This is a fundamental conflict of interest and definitely not in the best interests of the community. Local Government Association president, Councillor Genia McCaffery, Mayor of North Sydney, was reported in the Sydney Morning Herald on 11 April as saying:

Minister Sartor was reported as saying when he was the Lord Mayor of Sydney:

That is right, Frank—any fool! John Mant, a respected planning consultant, said:

I ask the Government to address the matter when the Minister replies to this debate. The community has great concern about the efficacy and integrity of the private certification system. The introduction of the system has posed many flaws and ethical quandaries, particularly considering the link between the developers paying money directly to the private certifier. Concern has been expressed in relation to heritage items being dealt with by private certifiers when, with the stroke of a pen, the wrecking balls could arrive to demolish our remaining heritage buildings and homes. I ask the Minister, or his representative, to clarify in reply what protections have been provided for heritage-listed properties. In his speech to this House on 15 November 2005, the Hon Tony Kelly acknowledged the community's concern. I quote:

In the past Paul Pearce, another Labor member, has also noted just how bad the private certification scheme is. I quote:

Where a private certifier is independently appointed to any matter, a system is needed. Under no circumstances should the Government pursue its objective to give private certifiers the dual role of both approving a development application and then overseeing compliance issues on the same matter. This is an inherent conflict of interest with a high risk of corruption.

The risk of corruption needs to be identified and addressed even with the current Independent Hearings and Assessment Panel processes already operating in some metropolitan councils. Permanent panels with the same people are not appropriate. The panels need to be regularly turned over on a random rotational basis for each panel meeting and the composition changed to minimise the risk of a corruption. Full background check on pecuniary and conflicts of interests of the applicants for such panels should be completed before appointment. Strict pecuniary and conflict of interest disclosure provisions need to be put in place to ensure that panel members, their family or associates and companies, do not benefit from them being on such a panel.

All panels should be required to publish statements of decision and indicate how each panel member deliberated and voted. Independent Hearings and Assessment Panels comprising tertiary qualified, multiskilled town planners, engineers, lawyers and senior staff with councillors as observers, should decide more substantial development applications.

In New South Wales the Government has created a climate where there is a perception that donations buy influence: dollars for development. We need legislation that will increase transparency and full community participation. This legislation has far too many deficiencies and, if not rejected, it should be referred to an upper House inquiry for comprehensive public consultation, which should have occurred in the first place.

The bill before the House has received much criticism across the State. It is the biggest planning overhaul in 30 years and deserves more community input. It even received condemnation from the Labor Party's own local government arm at its recent State conference. Panels making decisions on local developments instead of elected—and accountable—councillors are not the way to go. Not notifying neighbours of developments next door to them is not the way to go. The legislation will reduce community involvement in development decisions and impose substantial costs on councils, while reducing their powers and increasing conflicts of interest in our planning and development processes. For every household that gets a speedy approval for a renovation or new home, several households will have their appeal rights removed and their property rights thrown out the window.

Minister Sartor and this Government are steamrolling local communities in the name of reform and economic progress. The Opposition opposes the bill and I encourage all members to either refer the bill to an upper House inquiry or reject it.

The Hon. RICK COLLESS [5.55 p.m.]: I oppose in the strongest possible terms this draconian piece of legislation. The object of the bill is to improve the New South Wales planning system. Improve it for whom? Improve it for the vast majority of people of New South Wales? Improve it for the local government authorities across New South Wales? Or to improve it for the minority of big development companies that regularly pump millions of dollars into the Australian Labor Party coffers? These are rhetorical questions, of course.

When I entered this place in 2000, I had nearly 10 years experience as a councillor on the Inverell Shire Council. Even in those days the Minister for Planning was viewed with suspicion. I remember one of the many councillors I interacted with in those days saying to me that Frank Sartor did not think there was anything outside of the City of Sydney Council area and, if there was, he thought it should also be part of the City of Sydney Council. Frank thought he had better expand his horizons and he became the member for Rockdale but I am sure instead of having the member for Rockdale and Minister for Planning on his door, he would prefer to have "Frank Sartor, Lord Mayor of New South Wales".

The Minister is so arrogant that he believes he has to control all aspects of planning approvals at every level in New South Wales, without including any other government group, environmental people, local business or industry group nor the residents themselves. The Minister believes he should have more power than the 320 country mayors, deputy mayors and councillors that today voted unanimously at the Shires Association Conference—down the road at the Sofitel Wentworth Hotel—to send the proposed legislation to this place for an inquiry after Frank's mob forced it through the other place at something like 2.30 this morning.

I, like most other members, have received an unknown number of emails from residents of New South Wales. I have counted the emails I have received today and I am up to something like 300 emails so I must have received over 1,000 emails in the past week. The writer of each email has expressed concerned at the heavy-handed, bureaucratic and complex approach, which will not ease the process of development application approval—

The Hon. Christine Robertson: Are they not almost all the same?

The Hon. RICK COLLESS: The honourable member asks if they are all the same. If she would like, I will go to my office, collect the 300 emails, and return and read each one of them in the House.

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I remind all members that interjections are disorderly. The member with the call should ignore interjections and confine his comments to the subject matter of the bill.

The Hon. RICK COLLESS: Of course, I always take your counsel. The writer of each email has expressed concerned at the heavy-handed, bureaucratic and complex approach, which will not ease the process of development application approval but rather make it more difficult. I am not opposed to development, unlike some in this Chamber, but there are currently many problems with the planning approval process in New South Wales. Many applicants going before councils are becoming frustrated with the plethora of hoops that they are being forced to jump through to get their development applications approved.

There is no doubt that there is a great need for planning reform and the vast majority of the business community also believe that planning is in need of a transfusion; but these amendments are simply not what is required. The Environmental Planning and Assessment Act needs to be completely rewritten. Adding a few pages to it, as proposed by the bill, would do nothing more than add to its complexity.

The bill provides for a plethora of other instruments, including regulations, codes and guidelines, which include very small print. The Government is good at saying that it will deal with various issues in the regulations. The regulations document becomes bigger than the Act and the damage is in the fine print. The Minister can amend the regulations without any parliamentary debate. If Frank is given that power, it is bad news for all of New South Wales. The bill allows for panels and commissions, which will add complexity to the process. It establishes independent hearing and assessment panels, which are non-compulsory and advisory in nature, to allow professional planners and others to meet and consult with community groups and refer back to councils for consideration. That process happens now. Why have those provisions been included if the panels are non-compulsory? Once again, it adds to the complexity of the process.

An arbitrator will assess development applications up to $1 million. Again, the detail and guidelines of that process will be produced down the track in some form of regulation and will not be open to further parliamentary scrutiny. Clearly, neighbours and the community generally will not have access to plans or will not be notified until after an approval is granted. The first thing they will know about a development is when the bulldozer and the swinging balls arrive. For residential developments between $1 million and $50 million the current arrangements will apply. Developments worth more than $50 million will be referred to the new joint regional planning panel. This panel will comprise members appointed by the Minister. The Minister will have control of that panel. That is good for him because he wants to be the lord mayor of New South Wales. Major developments, or what the Minister calls major developments, will be referred to the new planning assessment panel. The Minister also will appoint the members of that panel. He will again have direct control of that process.

There are no guidelines as to how the planning assessment panel will operate. If there is a hearing, there are no appeal rights to the Land and Environment Court. Above the planning assessment panel, the Minister will be entitled to determine whether a project is critical infrastructure. The Minister will reserve the right, as I believe he does now, to determine those issues. The bill does not improve the development application process. It will increase red tape and make the whole process more complex. The bill will tie up local councils, reduce transparency and increase costs. I strongly support the amendment moved by the Hon. Don Harwin to send the bill to a committee of inquiry. There needs to be far more consultation with community groups and local government bodies in relation to the best way to proceed in the planning process. The bill must be carefully considered. We must not give Frank Sartor any more power that might confirm him as the lord mayor of New South Wales.

Reverend the Hon. Dr GORDON MOYES [6.04 p.m.]: The Environmental Planning and Assessment Amendment Bill 2008 amends the Environmental Planning and Assessment Act 1979 and other Acts and instruments to improve the New South Wales planning system. The Building Professionals Amendment Bill 2008 and the Strata Management Legislation Amendment Bill 2008 are cognate with this bill. The expressed intent of the amendments is to simplify, speed up and make cheaper the processes of development applications and appeals, improve certifier accountability and impose greater accountability on councils in the collection and subsequent application of section 94 contribution money.

Last year the New South Wales Government made headlines with its announcement to reform residential developments across the State and the proposed overhaul of the New South Wales planning system since the introduction of the Environmental Planning and Assessment Act 1979. Making the announcement on 27 November 2007, Minister Frank Sartor released the long-awaited discussion paper on the planning reform agenda, which outlined 90 recommended changes to the New South Wales planning system. That announcement by the New South Wales Government followed announcements by Victoria and Queensland to modernise their planning systems. The paper was put on exhibition over the Christmas-New Year break, which limited the opportunity for responses. The period for public comment on the draft exposure bill was limited to three weeks. This was totally insufficient to allow detailed examination and discussion of the complicated bill and supporting documentation by the public and community organisations. Even though 538 submissions were received, the Department of Planning officers were given just a week to consider them before the draft legislation was finalised.

The New South Wales Government released a draft exposure bill on 3 April 2008 setting out the proposed legislation. It seems certain that these reforms will be implemented in an incredibly short time frame, if passed by this House. Public consultation on the exposure bill closed on 24 April 2008, which was again a very short period. This is symptomatic of the whole process involved in this particular bill. The Government's view is that the current planning process is lengthy, complex and confusing for many users of the system, particularly at the local level. There seems to be broad acknowledgement by all stakeholders that the New South Wales planning system has become excessively complex. Lobby groups that have come to see me have explained their particular concerns in this regard. This is in large part the reason for the many delays, which the discussion paper addresses. The concerns about the system are also reflected in the poor results for New South Wales in relevant sections of the Planning Institute of Australia's 2007 planning report card, which is a survey of the planning profession's own views.

This one-size-fits-all approach fails to reflect the importance and level of complexity of different plan making and development assessment processes and often leads to long delays in local government development application processes. As such, although residential development applications accounted for almost 70 per cent of all reported development applications, the average processing time for most local government applications during 2006-07 was 75 days. Onerous delays increased holding costs through interest payments to financial institutions. The complexity of the system not only creates difficulties for practitioners in government, agencies and consultancies, but also increases the potential for errors, disputes and consequently adversarial relationships between parties and the basis for litigation. Importantly, the multitiered system now in place under the Environmental Planning and Assessment Act, including related Acts and regulations, planning instruments, circulars and local policies is such that active community participation in the planning system, including the mum and dad applicants often cited by the Minister Sartor, is one of the key objectives of this Act. That now has become inevitably constrained.

Access Economics reportedly estimated that the proposed reforms will save the State $580 million over five years. Recent findings conducted by Auspoll and the Property Council of Australia found that residents of New South Wales have a poor impression of planning approvals process in New South Wales. Almost half, or 45 per cent, regard the planning processes as poor or very poor and only 7 per cent consider them to be good. Another perceived shortfall in the current planning system is that it is not consistent across the State. As each council is required to develop individual planning controls, it has led to a variety of different approaches to development control and assessment.

Due to the lack of consistency, the current system lacks predictability and certainty. Historically, councils had the sole role of certification, which was seen as slow and inflexible. In 1998 the New South Wales Government introduced a private certification system, which improved time frames and flexibility and provided greater choice for persons seeking sign-off for buildings, subdivisions and minor works. However, these reforms left the system vulnerable to allegations of a lack of integrity and uncertainty over responsibilities.

The proposed reforms seek to change the development assessment system to become more responsive and better tailored to the complexity and significance of the development. According to the New South Wales Department of Planning, the discussion paper on the planning reform agenda outlined more than 90 recommendations to improve the planning system. They included such things as plans to increase the number of development approvals under compliance certificates; new targets to reduce the processing time for development applications and local plans, allowing more small-scale developments such as home renovations to be approved within 10 days if set standards are met; tailoring development application assessments and local plan-making systems to the size and complexity of proposals; increasing online planning information and support; improving oversight of the builders certification system; reducing the Minister's determination role for development proposals and increasing the use of assessment panels; and miscellaneous recommendations in areas such as strata management, paper subdivisions and dispute resolutions.

On all of these issues Minister Sartor has spent time with me, as well as other members, explaining how much more efficient and effective this system will be. While identifying a broad range of issues in the current planning system the main thrust of the reform is efficiency. I also commend Minister Sartor for the fact that he is willing to talk with us on these issues, and he has gone out of his way to make himself available for questioning on any of these points. The major reforms lie in proposals to cut red tape in lengthy council development approval processes by expanding the development, subject to certifier approval. The reforms include a set of measurable outcomes, which relate only to timing and processes rather than planning outcomes. The current reforms will lead to the process of risk management rather than effective planning.

The proposed reforms reduce council's role in decision making and assessing while increasing council's role in compliance. New bodies that do not really represent the community will decide more of the strategic and larger-scale assessment work that have greater impacts on the local community. These bodies will duplicate existing systems and are likely to increase costs. These strategies will simply exacerbate existing problems rather than solve them and increasingly act to reduce the community's input into decision making. Although the proposed reforms have received wide coverage they are generally being described in most quarters as procedural reforms to speed up the planning approvals process and to customise those processes to suit the scale of development proposed.

I have outlined a number of critical consequences for these reforms. They go well beyond the matters of procedure and demand close scrutiny. I believe there are eight critical consequences of the planning reforms that need to be identified. First, councils are set to lose substantial power and control over bread-and-butter development applications. About 95 per cent of all development applications in New South Wales relate to single residential dwelling houses. It is important that in relation to this category of development—all single dwelling houses, regardless of their cost, and all other residential works up to a capital value of $1 million—applicants will be able to have council decisions reviewed by an outside consultant who will be known as a planning arbitrator. The State Government will choose that arbitrator, not the local council.

Applicants who are unhappy with a decision of a council will be able to have the decision reviewed by a planning arbitrator, and where a council has not made a decision within a short timeframe—probably 30 days—applicants can automatically transfer the application to a planning arbitrator. The costs will be nominal—a few hundred dollars. Applicants will be able to amend their development application plans when this matter then goes to the arbitrator. The arbitrator must then determine the application within a certain time frame—the discussion paper released in November indicated that would be about 14 days. That is an incredibly tight time frame given that the arbitrator will not be familiar with the matter nor probably with the local area and the development application plans may have been amended in any event. There is no requirement that neighbours or objectors may be involved in the arbitration or even notified of it.

Lawyers are not permitted to be involved. In short, it will be a very fast decision by an outside consultant. Importantly, only applicants may appeal against the decision of an arbitrator, an appeal that would then go to the Land and Environment Court. This is obviously very good news for some applicants as it means they can lodge a development application with the council, seek a review of the deemed refusal within a very short time frame—probably 30 days—at minimum cost, and it takes the whole matter out of the hands of the local council. The arbitrator then must make a decision within a very tight time frame, possibly with amended development application plans that have not been notified to any neighbour or objectors, and if the applicant is unhappy with the arbitrator's decision he or she can appeal to the Land and Environment Court, whereas the council cannot.

This sets up a situation where many decisions in a local government area will be taken out of the hands of the local council and the council will have no right of appeal against the decision of the arbitrator. Interestingly, however, councils must pay for the arbitrator and must indemnify him or her for any costs orders made if an applicant successfully appeals against the arbitrator's decision in the Land and Environment Court. The council may not even wish to defend the arbitrator's decision but the council will be liable for any costs orders made in the applicant's favour. In addition, it will be a criminal offence for a council not to assist an arbitrator by not producing relevant documents on request or not making council staff available on request. This really is a breathtaking loss of power and control to local councils in relation to a category of development that, as I mentioned, amounts to about 95 per cent of all development applications in New South Wales.

The second concern I have is the attempt to prevent legal challenges, which I believe is set to backfire. There is an expressed intention in the planning reforms to limit legal appeals and challenges. For example, applicant and developer appeal rights will be slashed from 12 months to three months. However, in circumstances where planning arbitrators must make a decision within such a short time frame—about 14 days—there are bound to be legal errors. Lawyers cannot attend to address the arbitrator on legal issues relating to the decision—for example, on the correct legal interpretation of a planning requirement under the Act or under the council's local environmental plan. In those circumstances the result is likely to be that decisions made by arbitrators when they approve a development application will be susceptible to legal challenges in the Land and Environment Court by dissatisfied neighbours, objectors, and even by councils themselves. Such action is available under section 124 of the Environmental Planning and Assessment Act 1979.

At present these types of challenges are made against councils. However, councils are generally far less prone to legal error as they might take time to consider applications carefully and to obtain legal advice when necessary. Lawyers can attend council meetings and advise councils as required. Planning arbitrators will not have that luxury and their decisions may well be prone to legal challenge or legal error, opening the floodgates for potential section 124 actions. There is, however, a proposed provision excusing arbitrators from any personal liability in relation to their decisions. Therefore, where an invalid decision is made and the courts overturn the decision, applicants will have no ability to recover damages, such as delay costs and the like, against the arbitrator. It also seems likely that objectors will, for the first time, be given a right of appeal to the Land and Environment Court against the approval of certain residential developments. However, we are not told when these rights would arise. The detail is left to the regulations. But it appears that they will apply where significant breaches of numerical planning controls are proposed. A figure of 25 per cent breach has been mentioned.

My third concern relates to the lapsing of development consents. At present, a development consent cannot expire if it is physically commenced within a certain time frame specified in the consent—generally, three to five years. This requires only that some physical works relating to the consent must be carried out—I believe it may even be sufficient to put up a fence or to dig a drain—where that has been done before the lapse date. However, the planning reforms now propose that even where that has already occurred the development consent will expire if the work has not been substantially commenced within a further two years. This is a much more difficult threshold, requiring far more comprehensive works to be carried out.

Importantly, this has the potential to catch out a lot of developers and landowners who may have development consents where physical commencement has occurred but where the consent has otherwise been left in abeyance without substantial commencement of works. For these people even the additional two years that is proposed beyond the ordinary lapse date may have already expired or may be nearing expiration. In those cases, unless they are aware of this proposed planning reform, they may lose the ability to carry out the development.

For example, a developer or landowner has a consent requiring commencement within three years. It was issued five years ago. The developer carried out physical works prior to the three years and obtained legal advice and/or council sign off confirming that physical commencement had been achieved. The developer now has a more valuable site because it can be sold with consent for the future owner to build upon it. However, the new planning reforms will mean that substantial works have to be carried out within two years after the original three-year lapse date—that is, five years in total. That is now. Therefore, the consent lapses now because substantial works have not been carried out. Developer owners will simply lose their development consent. This amendment expressly applies to old development consents. There are no savings or transitional provisions to protect those consents. Approval via the new development application may no longer be permissible at all on the land, depending on the current zoning and planning controls.

My fourth concern relates to the cost of Land and Environment Court proceedings. Another stated intention of the legislation is to deter developers and applicants from lodging Land and Environment Court appeals. Applicants in appeals often amend their plans along the way to respond to and overcome concerns or issues raised by the council or objectors. This has generally been said to be an acceptable practice because it leads to a better planning outcome for the site. The two most recent Chief Judges of the Land and Environment Court—Justice Preston and Justice McClelland—have emphasised that planning appeals should not reflect an adversarial system of winners and losers. Rather, the goal should be to achieve an acceptable outcome for a site in terms of what building or use is approved. The process of amending plans to respond to concerns of councils or residents in a locality is an appropriate means of achieving that.

However, these planning reforms aim to deter applicants from amending plans by introducing a new rule that where an applicant elects to amend plans in any significant way the applicant must automatically pay the entire legal costs of the council. Although it is not clear, it seems that this means that costs must be paid on an indemnity basis, meaning that whatever costs the council has incurred—whether or not they are reasonable—they must automatically be paid by the applicant developer.

For example, if a council uses three senior barristers in court, their costs must all be paid. Indemnity costs are awarded very rarely in any court, and generally only where one party's conduct has been reprehensible. They are almost never awarded in the Land and Environment Court. Rather, costs are awarded from time to time, but only on a party-party basis. That means an assessment is made as to what costs are reasonably incurred and the unsuccessful party pays those reasonable costs only. Generally at present, where an applicant amends plans, the costs payable are only those thrown away—that is, wasted costs as a result of the council now having to look at new plans.

The proposal to award automatically all costs of the proceedings on an indemnity basis means that applicants will rarely agree to amend a proposal to achieve a better outcome unless they have very deep pockets indeed. Complaints of councils and objectors will be ignored and argued in court and we will almost certainly see a significant shift back to the highly adversarial system where there is only a win and a loss but no compromise other than where an applicant has significant financial resources. Alternatively, applicants must be able to amend just prior to lodging an appeal. Those who must make a decision about this bill require advice on this matter.

Finally, I am concerned about the fact that the Minister is to protect certain decisions that he makes from any legal challenge. The planning reforms go to unusual lengths to prevent any legal challenge whatever against certain decisions where the Minister has not followed the legal procedures provided for in these very reforms. In those cases the reforms prevent any legal challenge, even expressly overriding challenges on the grounds of procedural fairness or natural justice. Challenges on these grounds are almost always available, reflecting the deeply entrenched principle that everyone is entitled procedural fairness and that decision makers are bound by the laws of natural justice. In this case the planning reforms seek expressly to set the Minister free from those entrenched obligations. This is a very unusual level of protection for an administrative decision maker.

This bill is seriously flawed in key areas. I have deep concern that public consultation on these major changes to planning legislation in New South Wales has been inadequate. There is tremendous concern among local councils and in their communities that these proposed laws are being rushed through without proper assessment of their impact. They represent the most substantial changes to the planning system in decades and there are fears that they will give undue power to developers at the expense of local residents.
I will now examine the implications and address the problems with this bill. I will deal first with those concerning land use and plan making. The proposed changes to plan-making procedures are a cause for serious concern. I support the proposal to tailor the local environmental plan process to a scale, risk and complexity of the land use change using a gateway screening system. However, the streaming pathways and screening and evaluation criteria should be developed with input from local and State government agencies.

The draft bill provides for public comment on proposed local environmental plans only at the gateway stage. This represents a serious diminution of public participation in the local environmental plan process. I strongly believe that public comment should be required at both local environmental plan gateway stage and on the final proposed local environmental plan instruments, which can have significant implications. I oppose the proposals to provide the Minister with the power to determine that no consultation is required at the gateway stage of the so-called minor plans. This would allow plans to be made in the absence of any public consultation. This discretion should be removed from the bill.

I also believe that mandatory time frames should apply to all State agencies, including the gateway stage, and should also apply to Parliamentary Counsel's advice. While the proposal to provide a legal drafting service has merit, councils should have an ability to review local environmental plans following legal drafting to ensure that the original intent is maintained. The proposal that the Department of Planning dictate the content of development control plans is not supported other than to ensure consistency with the local environmental plan or State instrument. Moreover, the status of the development control plans needs to be raised to give them greater authority to complement the statutory instrument.

Secondly, I raise the matter of development assessment and review. The establishment of the Planning Assessment Commission and joint planning regional panels creates another level of bureaucracy that may not have any knowledge of the critical issues for the council area. It is difficult to see how the implementation of independent hearing and assessment panels would simplify, streamline and speed up the development approval assessment process as it would be adding yet another costly and time and resource consuming layer to that process, which is only consultative in nature. The proposed use of planning arbitrators to simplify the appeals process is unlikely to achieve the objectives of reduced delays, cost and litigation if it will take 38 days for arbitrators to make a determination, and it will still be open to a court to allow appeals after considering the arbitrator's determination. The discussion paper makes no mention of how it is proposed to improve and streamline the annual processes for development applications exceeding $1 million.

I have strong reservations regarding the proposed changes to development assessment. The changes create the opportunity for these bodies to be effectively stacked in order to favour developer interest. The absence of any provision preventing such stacking and ensuring that these bodies include persons with expertise in planning is a significant flaw in the proposed legislation. I have raised this matter personally with Minister Sartor without being satisfied. However, the following proposals are supported: Simplifying the development application lodgement requirements and streamlining integrated referrals as well as the statutory deemed refusal periods based on the value or complexity of development proposals.

I am concerned about the fact that we need to have a break at this time. I am also concerned about appeals processes and the increased complexity of them, without going into details. I also make mention of my concerns for exempt and complying developments. I also raise my concerns, as I have already mentioned, about development contributions and the problems with them, and I also have a whole series of concerns about private certifiers. I am sure there will be an opportunity later in the Committee stage to look at this in more detail. I am also concerned with the loss of community consultation on many issues proposed by the bill and, finally, of the failure to advance environmental sustainability.

I conclude by saying that the laws will add more layers of red tape and cost ratepayers millions of dollars to implement. They will take decisions away from communities and will impact on councils' ability to provide crucial services. As a result, there are questions over the motivation for the Government's changes to the New South Wales planning system which are being rushed through and with disregard to the views of communities, councils and other stakeholders, including those many thousands of people who have emailed us over the past few weeks. They will have to live with the implications and the impact of these proposed changes.

The vast majority of New South Wales residents have no idea how their homes will be affected by sweeping changes to the State's planning laws. The Auspoll survey found that 71 per cent of people had not heard anything at all about proposed changes to planning laws that will shift power from local councils to property developers or, further up the line, to the State Government. Although genuine reform is required to improve certainty, transparency and timeliness, proper consideration must be given to the laws with a view to making them more workable and equitable for all stakeholders in the planning process. While some reforms may be desirable, they are relatively minor and the existing laws protect the community far better than the proposed bills.

I am deeply concerned about the impact of the new planning laws and how they will affect communities, as communities will lose their right to participate in local planning issues and essential funding will be taken away. Many other industry and community bodies share these views. In view of the serious problems with the bills that I have addressed in my speech so far and the lack of adequate public consultation, I believe a detailed scrutiny of the legislation and its full implications is required. This matter is far too important and the implications to our communities too great for changes to be rushed through, as we are being forced to do now. We cannot hasten towards enacting legislation that will have the most far-reaching changes to the State's planning system for the next 30 years. Therefore, I support the Opposition's decision to call for an upper House inquiry into the Government's planning reforms to properly review the implications of the proposed changes, to hear from all affected stakeholders and to consider the total reform package before any substantive changes to the legislation are approved by me.

Debate adjourned on motion by the Hon. Greg Donnelly and set down as an order of the day for a later hour.

PARLIAMENT OF NEW SOUTH WALES

Environmental Planning and Assessment Amendment Bill 2008
Building Professionals Amendment Bill 2008
Strata Management Legislation Amendment Bill 2008

Legislative
Assembly

Legislative
Council

Members

Bills

Committees

Hansard

Research Papers

Engaging with Parliament

External Links

PARLIAMENT OF NEW SOUTH WALES

Environmental Planning and Assessment Amendment Bill 2008Building Professionals Amendment Bill 2008Strata Management Legislation Amendment Bill 2008

Legislative Assembly

Legislative Council

Members

Bills

Committees

Hansard

Research Papers

Engaging with Parliament

External Links

Environmental Planning and Assessment Amendment Bill 2008
Building Professionals Amendment Bill 2008
Strata Management Legislation Amendment Bill 2008

Legislative
Assembly

Legislative
Council