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

About this Item
Speakers - Chair (The Hon Amanda Fazio); Hale Ms Sylvia; Kelly The Hon Tony; Harwin The Hon Don; Brown The Hon Robert; Cohen Mr Ian; Nile Reverend The Hon Fred; Deputy-President (The Hon Amanda Fazio); Kaye Dr John
Business - Bill, Division, Third Reading, Amendment, In Committee, Motion, Report Adopted

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

Page: 8455

In Committee

The CHAIR (The Hon. Amanda Fazio): Order! The Committee will deal first with the Environmental Planning and Assessment Amendment Bill.

Clauses 1 to 5 agreed to.

Ms SYLVIA HALE [9.20 p.m.], by leave: I move Greens amendments Nos 1, 2, 4 to 11, 14 to 16, 20, 21, 24 to 26, 28 to 30, 36 to 48, 50 to 51, 53 to 55, 57 to 60, 62, 63 and 66 to 69 in globo:

No. 1 Page 7, schedule 1.1 [11], proposed section 54 (2) (c), lines 34 and 35. Omit "or a joint regional planning panel".

No. 2 Page 10, schedule 1.1 [11], proposed section 56 (5), line 18. Omit "or a joint regional planning panel".

No. 4 Page 22, schedule 2.1 [2], lines 13 and 14. Omit ", a joint regional planning panel or". Insert instead "or a".

No. 5 Page 22, schedule 2.1 [2], line 16. Omit ", panel".

No. 6 Page 22, schedule 2.1 [3], lines 22 and 23. Omit all words on those lines.

No. 7 Page 23, schedule 2.1 [8], line 5. Omit ", or".

No. 8 Page 23, schedule 2.1 [8], line 6. Omit all words on the line.

No. 9 Page 23, schedule 2.1 [9], lines 13–17. Omit all words on those lines.

No. 10 Page 23, schedule 2.1 [10], line 20. Omit ", Commission or panel". Insert instead "or Commission".

No. 11 Page 24, schedule 2.1 [13], proposed section 23A, line 8. Omit all words on the line.

No. 14 Page 25, schedule 2.1 [13], proposed section 23D (1) (c), line 18. Omit "a regional panel,".

No. 15 Page 25, schedule 2.1 [13], proposed section 23D (1) (d), lines 21–25. Omit all words on those lines.

No. 16 Page 25, schedule 2.1 [13], proposed section 23D (2), line 26. Omit "and (d)".

No. 20 Page 27, schedule 2.1 [13], proposed Division 3, lines 1–36. Omit all words on those lines.

No. 21 Page 28, schedule 2.1 [13], proposed section 23I (1), lines 5 and 6. Omit "(other than a matter subject to a determination or review by a regional panel)".

No. 24 Page 30, schedule 2.1 [13], proposed section 23N (1), line 16. Omit ", a regional panel".

No. 25 Page 30, schedule 2.1 [13], proposed section 23N (1) (a), line 20. Omit ", panel's".

No. 26 Page 30, schedule 2.1 [13], proposed section 23N (1) (b), line 22. Omit ", panel's".

No. 28 Page 30, schedule 2.1 [13], proposed section 23N (3), lines 31 and 32. Omit ", a regional panel".

No. 29 Page 30, schedule 2.1 [13], proposed section 23N (3), line 33. Omit "or a panel".

No. 30 Page 30, schedule 2.1 [13], proposed section 23N (3), lines 33 and 34. Omit ", panel's".

No. 36 Page 34, schedule 2.1 [27], proposed section 88 (1), lines 18–20. Omit all words on those lines. Insert instead:

Commission means the Planning Assessment Commission.

No. 37 Page 34, schedule 2.1 [27], proposed section 88 (1), line 23. Omit all words on the line.

No. 38 Page 35, schedule 2.1 [27], proposed section 89 (2), line 12. Omit "applicable regional panel". Insert instead "Commission".

No. 39 Page 35, schedule 2.1 [27], proposed section 89 (3), lines 14 and 15. Omit "An applicable regional panel to which a Crown development application is referred". Insert instead "The Commission".

No. 40 Page 35, schedule 2.1 [27], proposed section 89 (4), line 18. Omit "a regional panel". Insert instead "the Commission".

No. 41 Page 35, schedule 2.1 [27], proposed section 89 (5), line 21. Omit "an applicable regional panel". Insert instead "the Commission".

No. 42 Page 35, schedule 2.1 [27], proposed section 89 (5), line 23. Omit "panel". Insert instead "Commission".

No. 43 Page 35, schedule 2.1 [27], proposed section 89 (7), lines 27 and 28. Omit "an applicable regional panel or". Insert instead "the Commission".

No. 44 Page 35, schedule 2.1 [27], proposed section 89 (7), line 29. Omit "the panel or".

No. 45 Page 35, schedule 2.1 [27], proposed section 89A (1), lines 36 and 37. Omit "an applicable regional panel". Insert instead "the Commission".

No. 46 Page 38, schedule 2.1 [36], proposed section 96B, lines 20–22. Omit all words on those lines.

No. 47 Page 39, schedule 2.1 [36], proposed section 96B, line 3. Omit all words on the line.

No. 48 Page 39, schedule 2.1 [36], proposed section 96B, line 22. Omit ", a regional panel".

No. 50 Page 41, schedule 2.1 [36], proposed section 96E (4), line 8. Omit "applicable regional panel". Insert instead "Commission".

No. 51 Page 41, schedule 2.1 [36], proposed section 96E (5), lines 9-12. Omit all words on those lines.

No. 53 Page 41, schedule 2.1 [36], proposed section 96F (1), line 31. Omit ", a regional panel".

No. 54 Page 42, schedule 2.1 [36], proposed section 96G (6), lines 26 and 27. Omit "regional panel reviewing the application under section 96E". Insert instead "Commission".

No. 55 Page 48, schedule 2.1 [39], lines 13-17. Omit all words on those lines.

No. 57 Page 48, schedule 2.1 [40], lines 18 and 19. Omit all words on those lines.

No. 58 Pages 48 and 49, schedule 2.1 [42]-[47], line 22 on page 48 to line 18 on page 49. Omit all words on those lines.

No. 59 Page 49, schedule 2.1 [50], lines 26-29. Omit all words on those lines.

No. 60 Page 50, schedule 2.1 [51], line 9. Omit ", a joint regional planning panel".

No. 62 Page 51, schedule 2.1 [54], lines 26 and 27. Omit ", a joint regional planning panel".

No. 63 Pages 57-62, schedule 2.1 [56], proposed schedule 4, line 1 on page 57 to line 30 on page 62. Omit all words on those lines.

No. 66 Page 70, schedule 2.2 [59] and [60], lines 1-6. Omit all words on those lines.

No. 67 Pages 70 and 71, schedule 2.2 [62]–[68], line 13 on page 70 to line 6 on page 71. Omit all words on those lines.

No. 68 Page 74, schedule 2.4, line 13. Omit "or of a joint regional planning panel".

No. 69 Page 79, schedule 2.10 [12], proposed clause 268C, lines 33 and 34. Omit ", a joint regional planning panel".

The Greens have 94 amendments altogether, all of which refer to the joint regional planning panels. The number of amendments we have been required to move indicates the extent of opposition to the provisions of the bill and the need for it to be properly exposed to public discussion. However, members of the public have expressed extensive concerns and, as my colleague Dr John Kaye referred to earlier, he, I and other members of the House have received in excess of 2,000 emails. The joint regional planning panels are an example of unnecessary duplication of existing government and judicial bodies; certainly the panels will add costs and time to the development approval process.

It is relevant that I quote some of the remarks made by the member for Pittwater in the other place. He summarised concisely what is happening to the planning system. The Government's amendment bill is supposed to be in favour of reducing red tape and increasing efficiency. The planning panels should be put in context with the entire planning system. The member for Pittwater said:

Obviously this is an extraordinarily complex system, even for professionals who have to deal with the planning system on a day-to-day basis. To suggest that somehow that system will make things easier for the mums and dads of this State is a complete load of nonsense. For example, the planning panels remove many of the functions currently undertaken by councils and add another new layer of bureaucracy to the planning system. Unlike local councils, which are accountable directly to their constituents, the majority of members of the planning panels are appointed by the Minister and are accountable, solely, to the Minister. We know that the planning panels will comprise five members, three members to be appointed by the Minister and two members to be appointed by local councils. However, at least one of those appointed will have to have planning qualifications.

There is absolutely no provision for community representatives. The community is being left out in the cold. Having three of the five members on planning panels appointed by the Minister, and accountable, essentially, to the Minister, means that the Minister will remove the input of the communities from the democratically elected councils and usurp that to himself via his appointees. By requiring council nominees to have expertise in particular fields, the joint regional planning panels effectively shut out the community and prevent them from being represented. The panels will work in direct contravention to object 5 (b) of the Environmental Planning and Assessment Act, which is:

Establishing those panels is not about sharing responsibility between the different levels; it is about the Government ripping off planning responsibility, taking it from local government, and handing it to panels dominated by the Minister's handpicked appointees. For example, the panels will deal with developments up to $3 million for retail commercial development and $50 million for residential development—they will go to the proposed regional planning panels. Of course, they will be approved in the absence of local input. Already there are provisions in the bill to allow councils to establish independent hearing and assessment panels. If a council is to establish an independent hearing and assessment panel to advise it on particular developments, surely that is the appropriate way to go, rather than for the matter to be referred to an unelected, unaccountable committee.

The panels will be stacked with development professionals whose future livelihoods will depend upon the relations they have with industry and the Minister. Local councils and residents expect transparency and accountability within the process, but that is certainly not what is expected. Neither the Planning Assessment Commission nor the panels will be required to hold meetings in public. Basically they will report only to the Minister, the Minister who is responsible for their employment. What hope would any community have of having a say in how it is to be developed? Of course, councils will assess the development applications and provide those assessments to council staff. Usually the process in a council is for fairly junior members of staff to write a report, for the director to review the report and modify it, and for the report to then go to councillors who will debate it and assess it openly.

Now what level of report will go to the commission? Certainly in councils there will be a whole series of payments and penalties. If councils do not assist the panels, the general manager or a staff member may be liable to penalties exceeding $1,000, or liable to criminal sanctions for failing to comply with directions from the panels. It is unclear what will happen, but it is clear that it imposes a significant cost upon councils. They will get all the costs, none of the responsibility, and will be deprived of the ability to supply the input into those planning panel decisions. We should remember—and it is perfectly clear from what happened in Wollongong—that there are many assumptions about how corrupt elected councillors are. We know that corrupt councillors will be exposed by the ICAC or the Minister can dismiss them. We know that in Wollongong and in many other cases a lot of the corruption emanated from full-time council employees such as the general manager or the director of planning.

There is no suggestion that this bill will in any way remedy the situation, because there is an inherent assumption in this bill that, because a planning decision is moved from one body to another, that new body will automatically be more honest, more efficient and less corrupt than the existing body. Given that we know that the Minister will have a substantial involvement in the appointment of members of the planning panels, how can we assume they will be more efficient when, after all, they will be dependent on council to provide them with the reports, which presumably will be influential in their decision? To assume that for some reason the panels will be more efficient and honest—certainly, the evidence is as clear as the nose on one's face that they will not be any more accountable—is, I believe, inherently wrong. As was pointed out in the debate in the lower House, when meetings of a small group of unaccountable, unelected officials take place behind closed doors the potential for corruption is infinitely greater when compared at least to the council process, where at least the debate about major developments—we are talking about larger developments—occurs in public.

Reverend the Hon. Fred Nile:

Ms SYLVIA HALE:

The Hon. TONY KELLY

Panels will provide local councils with an opportunity to be involved in decisions about development important to their region, both through council staff preparing assessment reports and making recommendations, and through the council nominees of the panel being involved in the final decision. Appropriately, it is proposed that certain types of development that are currently determined by the Minister—for example, coastal subdivisions—will be determined by joint regional planning panels, thereby decentralising decision making and giving councils a greater say. The amendments would see all Crown development referred to the Planning Assessment Commission instead of the joint regional planning panels.

The amendments would abolish the ability to create joint regional planning panels and have all regionally significant matters dealt with solely by the Planning Assessment Commission, on which there is no local government representation. The Greens' proposal is overcentralisation of the worst kind. It removes the assessment of all regional projects from local councils. It is an abuse of State power. It also shows how measured and responsible the Government's proposals are. The Greens' proposal would also remove the ability of planning panels to deal effectively with issues arising from the classification and reclassification of public land. These matters are intrinsically linked to the process of making local environmental plans.

It is appropriate that these functions can, where needed, be given to panels as a sanction against councils that fail to comply with their obligations under planning legislation, demonstrate unsatisfactory performance or have been involved in corrupt conduct. The amendments would also remove any legislative requirement to give a council the opportunity to put its case before the Minister decides to appoint a panel or an administrator. These are necessary and essential procedural fairness requirements, and councils should be provided with the opportunity to make their case. For those reasons the Government opposes the amendments.

The Hon. DON HARWIN [9.36 p.m.]: During my contribution to the second reading debate I made a number of remarks about what the Opposition's attitude would be in the Committee stage. Referring to Ms Sylvia Hale's remarks on the joint regional planning panels, I would not necessarily disagree with anything she said. Indeed, she quoted at length from the contribution of the member for Pittwater in another place, which is a quote I used in my contribution to the second reading debate, and it is very apposite. I made it clear on behalf of the Opposition what our position would be: We said we would support this bill going to General Purpose Standing Committee No. 4 for further review through an inquiry process. We moved that as an amendment to the second reading. The record will show that we were unsuccessful by one vote, after the Shooters Party members and Reverend the Hon. Fred Nile voted with the Government.

Failing an inquiry, we then said that we would oppose the second reading of the bill. Again by the same margin and with the same members voting with the Government we were unsuccessful, by one vote, in stopping the bill. Earlier I indicated that in the event that we were unsuccessful our position would be based on this fundamental view about the bill: We believe that no amount of amendment will fix the bill, and regardless of the merits of individual amendments moved by Ms Sylvia Hale we will not be a position to support any of them. Indeed, there is considerable merit to this tranche of amendments, but the reality is that we have made our position clear. The Government wants this bill. The Government got it second read and we will let the Government rise or fall on the strength of what it has put up. I understand that Reverend the Hon. Fred Nile has circulated amendments and I will have some comments to make about them. However, the Opposition will not support any of the Greens amendments.

Ms SYLVIA HALE

The Hon. DON HARWIN

The Hon. ROBERT BROWN

The Hon. Don Harwin: Hypocrisy.

The Hon. ROBERT BROWN:

The Hon. Don Harwin: Well do it.

The Hon. ROBERT BROWN:

Mr Ian Cohen:

The Hon. ROBERT BROWN:

Mr IAN COHEN

Reverend the Hon. FRED NILE [9.45 p.m.]: I do not support the amendments moved by the Greens to abolish the joint regional planning panels.

[Interruption]

I take umbrage at the insulting remarks by Ms Sylvia Hale that the Government will vote for my amendments because I have done a deal. In what way have I done a deal? I agree with the bill in principle. A number of organisations have asked me to move amendments—included among them is the Coalition for New South Wales Planning Reform, which also presented its case to members on the crossbenches. At a crossbench meeting I asked for, and was supplied with, the amendments that have been drafted. The amendments I am moving are not really my amendments, nor are they the result of a deal with the Government. I am moving amendments on behalf of community groups in this State, not for any personal benefit. I object to any implication about a deal to get my amendments passed by this House.

Ms SYLVIA HALE [9.47 p.m.]: In relation to the debate on the part 3A reforms, my predominant recollection is of the Hon. Patricia Forsythe bemoaning the fact that she supported the amendments to the bill but decried the fact that the Government was taking over Opposition policy. She expressed great disappointment because the Government had taken so long to adopt the Opposition's views on planning laws. In relation to the remarks by Reverend the Hon. Fred Nile, it is my understanding that there has been a discussion with the Minister for Planning about the amendments.

Reverend the Hon. Fred Nile: Yes, as I stated that in my second reading speech. And it was transparent and honest.

Ms SYLVIA HALE: And no doubt the Government will support the amendments of Reverend the Hon. Fred Nile when they are moved. It would strike most people as tantamount to Reverend the Hon. Fred Nile having done a deal with the Government to support his amendments in return for his support of the bills being read a second time rather than being sent to a committee for inquiry and report.

[Interruption]

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! Mr Ian Cohen and Reverend the Hon. Fred Nile will cease interjecting. The Chair is about to put a question to the Committee.

Question—That Greens amendments Nos 1, 2, 4 to 11, 14 to 16, 20, 21, 24 to 26, 28 to 30, 36 to 48, 50, 51, 53 to 55, 57 to 60, 62, 63 and 66 to 69 be agreed to—put.

The Committee divided.

Ayes, 4

Ms Hale
Ms Rhiannon
Tellers,
Mr Cohen
Dr Kaye

Noes, 28

Mr Ajaka
Mr Brown
Mr Catanzariti
Mr Clarke
Mr Colless
Ms Ficarra
Miss Gardiner
Mr Gay
Ms Griffin
Mr Kelly

Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Pearce
Mr Primrose
Ms Robertson

Ms Voltz
Mr Smith
Mr Tsang
Mr Veitch
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Harwin

Question resolved in the negative.

Greens amendments Nos 1, 2, 4 to 11, 14 to 16, 20, 21, 24 to 26, 28 to 30, 36 to 48, 50, 51, 53 to 55, 57 to 60, 62, 63 and 66 to 69 negatived.

Ms SYLVIA HALE [9.58 p.m.]: I move Greens amendment No. 3:

No. 3 Page 20, schedule 1.4, lines 2 and 3. Omit all words on those lines. Insert instead:

[1] Section 80

Omit the section. Insert instead:

80 Definitions

In this Part:

environmental planning instrument has the same meaning as it has in the Environmental Planning and Assessment Act 1979.

planning proposal has the same meaning as it has in section 55 of the Environmental Planning and Assessment Act 1979.

[2] Section 82 Heritage Council may request preparation of planning proposal

Omit "draft environmental planning instrument" wherever occurring in section 82 (1), (3) and (4).

Insert instead "planning proposal".

[3] Section 82 (5) and (6)

Omit the subsections. Insert instead:

(5) A planning proposal referred to in this section may be dealt with in accordance with the relevant provisions of the Environmental Planning and Assessment Act 1979 as if it were a planning proposal prepared under that Act.

[4] Section 83 Heritage Council to be consulted in preparation of certain environmental planning instruments

Omit "draft environmental planning instrument" from section 83 (1).

Insert instead "planning proposal".

[5] Section 83 (3)

Insert "arising from a planning proposal" after "instrument".

[6] Section 84 Guidelines for preparation of EPIs

Omit "local environmental plan" from section 84 (1).

Insert instead "planning proposal".

[7] Section 84 (1). Omit "plan (or some other local environmental plan being amended by the plan)".

Insert instead "proposal".

[8] Section 84 (2). Omit "local environmental plans". Insert instead "planning proposals".

[9] Section 84 (2). Omit "those instruments".

Insert instead "environmental planning instruments arising from those proposals".

[10] Section 84 (3). Omit "for the purposes of subsection (1)".

Insert instead "arising from a planning proposal referred to in subsection (1)".

The amendment will ensure that the role of the Heritage Council is maintained and not undermined by the bill. The amendment has the effect of maintaining the existing arrangements whereby the Heritage Council may request that a planning proposal be prepared, and the council must be consulted in the preparation of certain environmental instruments. This will ensure that the role of the Heritage Council in promoting the protection of heritage buildings and precincts is maintained. I am sure all members will be very conscious of the attention that has been paid in local newspapers to the potential threat of the provisions of the bill to heritage. The Minister has been quite open in his dislike of heritage considerations, and has certainly indicated that there will be a distinct unwillingness to list further items.

The many members who have had considerable involvement with local government would be aware of the difficulty in persuading councils to draw up a list of heritage items and to keep the list up to date. My local council of Marrickville prepared a register of local heritage items in the mid- to late-1970s. The council consulted widely on the list. About 20 years later, in the late-1990s, the register needed to be updated. In a place such as Marrickville debate about items that should be included in such a list is interesting and complicated. It includes the impact on local development from traditional Anglo views as to what constitutes good architecture and historic merit and the influence on the built environment of various groups, such as the Thai, Greek, Portuguese and Italian communities. Inevitably, a great range of opinions was put as to the items that should be included on the heritage list. One issue that brought home to me the importance of keeping the list up to date related to a property known as Prospect Villa in Croydon Street, Petersham. Prospect Villa was perhaps the last remaining farmhouse dating from the 1840s that survived in inner Sydney. Tours of the district's heritage sites, following maps provided by the local heritage society, and guided tours in Heritage Week, always started at Prospect Villa. It was a site of importance to the community.

Unfortunately, due to an oversight, Prospect Villa had not been included on the original heritage register. Following a new owner acquiring the property, council officers gave permission for Prospect Villa to be demolished. The matter did not come before council despite the fact that the property was located in a heritage precinct. The demolition of the building caused considerable outrage in the community. Members will remember that in the mid-1970s the Marrickville municipality witnessed the demolition of Rose's Emporium, which was instrumental in giving rise to the green bans movement and the heritage protections that were enshrined in the 1978 Environmental Planning and Assessment Act. Communities are genuinely concerned, particularly in relation to the complying development codes, that unless a residence, house or building is currently listed on a heritage register and therefore given some form of protection, it will be legal for a private certifier to agree to the demolition of items that should be preserved for the cultural history of our State.

The Minister has said that currently listed heritage buildings will not be affected, but a code that is being prepared will determine how listed heritage buildings will be treated. This is one of the many codes that has not seen the light of day. We have not even seen a draft version of it. Unfortunately, as with so many aspects of the bill fundamentally important considerations, which people feel strongly about, have the potential to be overridden and dismissed because of the power that will be delivered into the hands of unelected and unaccountable planning arbitrators and panels proposed by the Government. The amendment will make sure that the Heritage Council is maintained and not undermined by the bill. We know that the Heritage Council has been emasculated and encompassed within the Department of Planning. It is subordinate to the Department of Planning. We know that its chair, Gabriel Kibble, has been the administrator of Liverpool City Council and now the administrator of Wollongong City Council. It is extraordinary how little respect is paid by the Minister for Planning to the genuine consideration of heritage issues. That is more than exemplified by the Government's determination to trash places such as Catherine Hill Bay and ignore community sentiments at places such as Sandon Point. The amendment seeks to ensure that the Heritage Council is maintained as an effective body and advocate on heritage issues.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [10.06 p.m.]: The Government opposes Greens amendment No. 3. The amendment would reinstate the partly unworkable and partly redundant consultation provisions that the bill removes. For example, section 82 of the Heritage Act, which the bill seeks to restore, has not been used in 30 years because its provisions are unworkable, while section 84 of the Heritage Act duplicates the existing provisions of section 117 of the Environmental Planning and Assessment Act. The bill establishes the new comprehensive gateway process for planning proposals. This is where heritage concerns will be raised and addressed. The gateway to determination will set the requirements for consultation with the Heritage Council and for appropriate heritage studies. The amendment is simply process for the sake of process. It is unnecessary.

Question—That Greens amendment No. 3 be agreed to—put.

The Committee divided.

Ayes, 4

Dr Kaye
Ms Rhiannon
Tellers,
Mr Cohen
Ms Hale

Noes, 27

Mr Ajaka
Mr Brown
Mr Catanzariti
Mr Clarke
Mr Colless
Ms Ficarra
Miss Gardiner
Ms Griffin
Mr Kelly
Mr Khan

Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Pearce
Mr Primrose
Ms Robertson
Mr Smith

Mr Tsang
Mr Veitch
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Harwin

Question resolved in the negative.

Greens amendment No. 3 negatived.

Reverend the Hon. FRED NILE [10.15 p.m.], by leave: I move Christian Democratic Party amendments Nos 1, 4, 5, 6, 7, 8 and 9 in globo:

No. 1 Page 22, schedule 2.1 [5], lines 31 and 32. Omit all words on those lines. Insert instead:

[5] Section 22 Establishment of other committees

Omit section 22 (4). Insert instead:

(4) The regulations may make provision for or with respect to the following matters:

(a) the procedures of committees in exercising their functions,

(b) the remuneration payable to committee members and alternate members,

(c) the appointment of alternate members for committee members and the functions of alternate members,

(d) the appointment and procedures of subcommittees in exercising their functions.

No. 4 Page 72, schedule 2.2 [75], proposed clause 125 (1), line 14. Omit ", or a committee established under section 22,".

No. 5 Page 79, schedule 2.10 [12], proposed clause 268C. Insert after line 32:

committee means a committee established under section 22.

No. 6 Page 79, schedule 2.10 [12], proposed clause 268C, line 34. Omit "or a planning assessment panel". Insert instead ", a planning assessment panel or a committee".

No. 7 Page 80, schedule 2.10 [12], proposed clause 268G. Insert after line 22:

(2) This clause does not apply to a committee appointed to act as an advisory body.

No. 8 Page 80, schedule 2.10 [12], proposed clause 268H, line 24. Insert "(other than a committee)" after "planning body".

No. 9 Page 81, schedule 2.10 [12]. Insert after line 33:

268L Remuneration of committee members

A committee member is entitled to be paid such remuneration (including travelling and subsistence allowances) as is specified in the member's instrument of appointment.

268M Alternate members for committees

(1) The Minister or Director-General may, from time to time, appoint a person to be the alternate of a committee member, and may revoke any such appointment.

(2) In the absence of a committee member, the member's alternate may, if available, act in the place of the member.

(3) While acting in the place of a committee member, a person has all the functions of the member and is taken to be a committee member.

(4) A person while acting in the place of a committee member is entitled to be paid such remuneration (including traveling and subsistence allowances) as the Minister may from time to time determine in respect of the person.

(5) A person may be appointed as the alternate of 2 or more committee members, but may represent only one of those members at any meeting of the committee.

(6) This clause does not operate to confer on the alternate of a member who is the Chairperson of a committee the member's functions as Chairperson.

268N Minutes of committee meetings

(1) The Chairperson must cause minutes to be kept of the proceedings of each meeting of a committee.

(2) The Director-General must cause the minutes of meetings of committees to be published on the website of the Department within 3 months of the meetings concerned.

I hope Sylvia Hale will listen and then apologise for her earlier remarks about my making a deal with the Government.

Mr Ian Cohen:

Reverend the Hon. FRED NILE: Listen to the letter I will read. If Mr Cohen has any decency he will listen. This letter from the Coalition for New South Wales Planning Reform dated 12 June 2008 says:

Re: Implementation of advisory committeeRe: Implementation of advisory committee

at which Mr Cohen was present—

That refers to the Coalition for New South Wales Planning Reform, not the Opposition in this House. The letter continues:

So much for Fred Nile doing a deal. The member was present at the crossbench meeting when they made the presentation. I am simply moving the amendment that this organisation has had the Minister agree to. The amendment is an important one because the Government's bill seeks to omit section 22, which deals with the establishment of other committees. My amendment will reinstitute section 22 so that this implementation advisory committee can be formed, which the Minister has agreed to support in his discussions with the Coalition for New South Wales Planning Reform. As a result of my offer to help, the coalition gave me the proposal and I had to get it drafted by Parliamentary Counsel in the form of an amendment.

We know that is essential in presenting amendments in the Committee stage. The Minister has agreed to the proposals for the role of the Implementation Advisory Committee, its administration and its membership, and that it will include representatives of the Nature Conservation Council and the Total Environment Centre, which should make the Greens very happy. I question whether it is necessary to have those two organisations represented, but I understand the Minister is so fair-minded that he insisted they should be on the committee. The committee representatives are from Planning Institute of Australia, the Royal Australian Institute of Architects, the Local Government and Shires Association, the Local Government General Managers Association, the Law Society, the Property Council of Australia, the Urban Development Institute of Australia, the Housing Industry Association, the Real Estate Institute of New South Wales, the New South Wales Urban Task Force, the Building Designers Association of New South Wales, the New South Wales Business Chamber, the Association for Credited Certifiers and the Australian Institute of Building Surveyors (NSW Chapter).

I do not believe you can get a more broadly based representative committee than that and I am sure it will be very effective in overseeing the implementation of this legislation. That is why I felt it was not necessary to refer it to a committee but to have this advisory committee supervise it and later not to have an amendment but the Government's assurance that it will establish a reference to the State Development Committee to also have an overseeing role of the committee over a 12-month period and report in December next year. I have much pleasure in moving my amendments Nos 1, 4, 5, 6, 7, 8 and 9.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [10.21 p.m.]: The Government supports proposed amendments Nos 1 and 4 to 9 inclusive. The bill includes a provision that would have the effect of removing section 22 committees from the Act. This was proposed on the basis that the provision has been rarely used. In recent times the department has used other non-statutory mechanisms for consulting and engaging with stakeholders. However, having considered the proposed amendment, the Government does not oppose the retention of section 22 of the Act.

The Government is committed to establishing an implementation advisory group to oversee and advise on the implementation of the planning reforms. The Minister for Planning made this commitment clear in his agreement in principle speech in the other place. The retention of section 22 will enable this Implementation Advisory Committee to be established on a statutory basis, signifying the importance the Government places on the role of this committee in the planning reform process. Indeed, I understand the Minister for Planning has already taken steps to consult about membership of the committee and to develop terms of reference.

The proposed membership of the Implementation Advisory Committee, as mentioned by Reverend the Hon. Fred Nile, includes the Planning Institute of Australia, the Royal Australian Institute of Architects, the Local Government and Shires Association, the Local Government General Managers Association, the Total Environment Centre, the Nature Conservation Council, the Law Society, the Property Council of Australia, the Urban Development Institute of Australia, the Housing Industry Association and the Real Estate Institute of New South Wales.

The Minister for Planning has advised me that the proposed terms of reference for the Implementation Advisory Committee are to provide advice on prospective matters related to the implementation of the planning reforms; to provide advice to the Minister on the development and delivery of an implementation and educational strategy for the planning reforms; to provide advice to the Minister on key aspects of subordinate regulations and any guidelines or codes arising from the reforms; and to otherwise provide advice, recommendations and assistance as requested. The committee will meet regularly and minutes of meetings will be made publicly available on the Department of Planning website.

As honourable members can see, there is a genuine commitment by the Government to ensure that these planning reforms are effectively implemented in full consultation with stakeholders. The retention of section 22 of the Environmental Planning and Assessment Act will ensure that the Implementation Advisory Committee is established on a statutory basis. For those reasons the Government supports these amendments.

The Hon. DON HARWIN [10.24 p.m.]: I listened closely to the Minister and from his remarks, and those of Reverend the Hon. Fred Nile when he moved these amendments, it is fairly clear that the proposals encapsulated in this amendment have now become part of the Government's package. Minister Sartor certainly gave the undertaking in the other House, as Reverend the Hon. Fred Nile mentioned, so it is effectively part of the Government's proposal.

In my contribution to the second reading debate I made it quite clear what our attitude would be on this sort of section 22 committee, which is focused on implementation. Some major stakeholders who have reservations still want to give this bill a go and do what they can to make it work. Good luck to them. We think it is a flawed bill and, as I said earlier, the Government will rise or fall on this proposal. While we do not support any substantive amendments we think this proposal is now, essentially, part of the Government's proposal, so the Opposition will not oppose the amendments moved by Reverend the Hon. Fred Nile.

Ms SYLVIA HALE [10.26 p.m.]: The Greens do not oppose these amendments. Reverend the Hon. Fred Nile said this proposal was put before the crossbench several weeks ago, and I remember that meeting very well. I remember that among the attendees were representatives of the Property Council, the Planning Institute of Australia and the Royal Australian Institute of Architects. We have always known that the Property Council has represented the very largest developers in this State, and no-one was under any misapprehension as to who they were.

Dr Debra Dearing, representing the Royal Australian Institute of Architects, singularly failed to mention that she was the chief of strategic planning for Stockland. She failed to mention that at a function in February the Minister approached her and asked her how things were going down at Sandon Point. She said they were running into troubles down there, and it was as a result of that that the council was subsequently strong- armed by the Minister to forego millions of dollars in compensation for the loss of land that was being handed over to Stockland. In her article in the Sydney Morning Herald last Wednesday, Elizabeth Farrelly described Julie Bindon from the Planning Institute of Australia as similarly having connections with and doing work for very significant and major developers in this State.

The amendment is about the committee being advisory—and that is all it can do: advise. There is no obligation on the Minister to take one iota of notice of anything the committee may have to say—and it is also about implementation. That presumably works on the assumption that all the provisions of this Act should be implemented, and I think there are very many people in the community who would not be of that view. But insofar as it provides for some measure of input, I am not sure that I would place much faith in the input of the Chamber of Commerce, the Urban Task Force, the Housing Industry Association or the Property Council of New South Wales. I have very great reservations as to the worth of any input from those organisations. I am certain the committee will be extraordinarily self-interested and not act in the interests of the people of New South Wales.

The Hon. ROBERT BROWN

Sydney Morning Herald

Question—That Christian Democratic Party amendments Nos 1 and 4 to 9 be agreed to—put and resolved in the affirmative.

Christian Democratic Party amendments Nos 1 and 4 to 9 agreed to.

Ms SYLVIA HALE [10.31 p.m.], by leave: I move Greens amendments Nos 12, 13 and 19 in globo:

No. 12 Page 24, schedule 2.1 [13], proposed section 23D (1) (a), lines 32 and 33. Omit ", if those matters are delegated to it by the Minister".

No. 13 Page 25, schedule 2.1 [13], proposed section 23D (1) (b), lines 1–17. Omit all words on those lines. Insert instead:

(b) advise the Minister as to planning or development matters, environmental planning instruments or the administration or implementation of the provisions of this Act, or any related matter,

(c) review any aspect of a project, or a concept plan, under Part 3A,

(d) review all or any of the environmental aspects of proposed development the subject of a development application (whether or not it is designated development), or a part of any such proposed development,

(e) review all or any of the environmental aspects of an activity referred to in section 112 (1), or of a part of any such activity,

(f) review a proposal to constitute, alter or abolish a development area under section 132 or 133,

No. 19 Page 26, schedule 2.1 [13]. Insert after line 37:

23G Constitution of Joint Committee

As soon as practicable after the commencement of this Division and the commencement of the first session of each Parliament, a joint committee of members of Parliament, to be known as the Committee on the Planning Assessment Commission (the Joint Committee), must be appointed.

23H Functions of Joint Committee

(1) The functions of the Joint Committee are as follows:

(a) monitor and to review the exercise by the Commission of the Commission's functions,

(b) report to both Houses of Parliament, with such comments as it thinks fit, on any matter appertaining to the Commission or connected with the exercise of its functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed,

(c) examine each annual and other report of the Commission and report to both Houses of Parliament on any matter appearing in, or arising out of, any such report,

(d) examine trends and changes in planning assessment, and practices and methods relating to planning assessment, and report to both Houses of Parliament any change which the Joint Committee thinks desirable to the functions, structures and procedures of the Commission,

(e) inquire into any question in connection with its functions which is referred to it by both Houses of Parliament, and report to both Houses on that question.

(2) Nothing in this Part authorises the Joint Committee to reconsider the findings, recommendations, determinations or other decisions of the Commission in relation to a particular planning matter.

23I Power to veto proposed appointment to Commission

(1) The Minister is to refer a proposal to appoint a person as a member of the Commission to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.

(2) The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.

(3) The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.

(4) A referral or notification under this section is to be in writing.

23J Membership of Joint Committee

(1) The Joint Committee is to consist of 11 members, of whom:

(a) 3 are to be members of, and appointed by, the Legislative Council, and

(b) 8 are to be members of, and appointed by, the Legislative Assembly.

(2) The appointment of members of the Joint Committee is, as far as practicable, to be in accordance with the practice of Parliament with reference to the appointment of members to serve on joint committees of both Houses of Parliament.

(3) A person is not eligible for appointment as a member of the Joint Committee if the person is a Minister of the Crown or a Parliamentary Secretary.

23K Vacancies

(1) A member of the Joint Committee ceases to hold office:

(a) when the Legislative Assembly is dissolved or expires by the effluxion of time, or

(b) if the member becomes a Minister of the Crown or a Parliamentary Secretary, or

(c) if the member ceases to be a member of the Legislative Council or Legislative Assembly, or

(d) if, being a member of the Legislative Council, the member resigns the office by instrument in writing addressed to the President of the Legislative Council, or

(e) if, being a member of the Legislative Assembly, the member resigns the office by instrument in writing addressed to the Speaker of the Legislative Assembly, or

(f) if the member is discharged from office by the House of Parliament to which the member belongs.

(2) Either House of Parliament may appoint one of its members to fill a vacancy among the members of the Joint Committee appointed by that House.

23L Chair and Deputy Chair of Joint Committee

(1) There is to be a Chair and a Deputy Chair of the Joint Committee, who are to be elected by and from the members of the Joint Committee.

(2) A member of the Joint Committee ceases to hold office as Chair or Deputy Chair of the Joint Committee if:

(a) the member ceases to be a member of the Committee, or

(b) the member resigns the office by instrument in writing presented to a meeting of the Committee, or

(c) the member is discharged from office by the Committee.

(3) At any time when the Chair is absent from New South Wales or is, for any reason, unable to perform the duties of Chair or there is a vacancy in that office, the Deputy Chair may exercise the functions of the Chair under this Act or under the Parliamentary Evidence Act 1901.

23M Procedure of Joint Committee

(1) The procedure for the calling of meetings of the Joint Committee and for the conduct of business at those meetings are, subject to this Part, to be as determined by the Committee.

(2) The Clerk of the Legislative Assembly must call the first meeting of the Joint Committee in each Parliament in such manner as the Clerk thinks fit.

(3) At a meeting of the Joint Committee, 4 members constitute a quorum.

(4) The Chair or, in the absence of the Chair, the Deputy Chair or, in the absence of both the Chair and Deputy Chair, a member of the Joint Committee elected to chair the meeting by the members present is to preside at a meeting of the Committee.

(5) The Deputy Chair or other member presiding at a meeting of the Joint Committee has, in relation to the meeting, all the functions and powers of the Chair.

(6) The Chair, Deputy Chair or other member presiding at a meeting of the Joint Committee is to have a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(7) A question arising at a meeting of the Joint Committee is to be determined by a majority of the votes of the members present and voting.

(8) The Joint Committee may sit and transact business despite any prorogation or adjournment of the Legislative Assembly.

(9) The Joint Committee may sit and transact business on a sitting day of the Legislative Assembly during the time of the sitting.

23N Evidence

(1) Subject to this section, the Joint Committee must take all evidence in public.

(2) Where, in the opinion of the Joint Committee, any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced in evidence to, the Committee relates to a secret or confidential matter, the Committee may, and at the request of the witness giving the evidence or producing the document must:

(a) take the evidence in private, or

(b) direct that the document, or the part of the document, be treated as confidential.

(3) If any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced in evidence to, the Joint Committee relates to the proposed appointment of a person as a member of the Commission, the Committee must (despite any other provision of this section):

(a) take the evidence in private, or

(b) direct that the document, or the part of the document, be treated as confidential.

(4) Despite any other provision of this section except subsection (9), the Joint Committee must not, and a person (including a member of the Committee) must not, disclose any evidence or the contents of a document or that part of a document to which subsection (3) applies.

Maximum penalty: 20 penalty units or imprisonment for 3 months, or both.

(5) Despite any other provision of this section except subsection (10), the Joint Committee (including a member of the Committee) must not, and any person assisting the Committee or present during the deliberations of the Committee must not, except in accordance with section 23I (3), disclose whether or not the Committee or any member of the Committee has vetoed, or proposes to veto, the proposed appointment of a person as Auditor-General.

Maximum penalty: 20 penalty units or imprisonment for 3 months, or both.

(6) Where a direction under subsection (2) is applicable in respect of a document, or a part of a document, produced in evidence to the Joint Committee, the contents of the document or part are, for the purposes of this section, taken to be evidence given by the person producing the document and taken by the Committee in private.

(7) Where, at the request of a witness, evidence is taken by the Joint Committee in private:

(a) the Committee must not, without the consent in writing of the witness, and

(b) a person (including a member of the Committee) must not, without the consent in writing of the witness and the authority of the Committee under subsection (9), disclose or publish the whole or a part of that evidence.

Maximum penalty: 20 penalty units or imprisonment for a term not exceeding 3 months, or both.

(8) Where evidence is taken by the Joint Committee in private otherwise than at the request of a witness, a person (including a member of the Committee) must not, without the authority of the Committee under subsection (9), disclose or publish the whole or a part of that evidence.

Maximum penalty: 20 penalty units or imprisonment for a term not exceeding 3 months, or both.

(9) The Joint Committee may, in its discretion, disclose or publish or, by writing under the hand of the Chair, authorise the disclosure or publication of evidence taken in private by the Committee, but this subsection does not operate so as to affect the necessity for the consent of a witness under subsection (7).

(10) Nothing in this section prohibits:

(a) the disclosure or publication of evidence that has already been lawfully published, or

(b) the disclosure or publication by a person of a matter of which the person has become aware otherwise than by reason, directly or indirectly, of the giving of evidence before the Committee.

(11) This section has effect despite section 4 of the Parliamentary Papers (Supplementary Provisions) Act 1975.

(12) If evidence taken by the Joint Committee in private is disclosed or published in accordance with this section, sections 5 and 6 of the Parliamentary Papers (Supplementary Provisions) Act 1975 apply to and in relation to the disclosure or publication as if it were a publication of that evidence under the authority of section 4 of that Act.

Note. The Defamation Act 2005 makes provision for 2 defences in respect of the publication of defamatory matter that is contained in evidence taken by, or documents produced to, the Committee in private, but only if the evidence or documents have been disclosed or published in accordance with this section. 28 of the Defamation Act 2005 (when read with clause 8 of schedule 2 to that Act) ensures that such documents attract the defence relating to public documents in defamation proceedings. 29 of the Defamation Act 2005 (when read with clause 17 of schedule 3 to that Act) ensures that proceedings in which such evidence is taken or documents produced attract the defences relating to fair reports of proceedings of public concern in defamation proceedings.

(13) Where the Joint Committee as constituted at any time has taken evidence in relation to a matter but the Committee as so constituted has ceased to exist before reporting on the matter, the Committee as constituted at any subsequent time, whether during the same or another Parliament, may consider that evidence as if it had taken that evidence.

(14) The production of documents to the Joint Committee is to be in accordance with the practice of the Legislative Assembly with respect to the production of documents to select committees of the Legislative Assembly.

Greens amendment No. 12 is the first in a series of amendments that address the role of the Planning Assessment Commission. The Greens are not opposed to the creation of a Planning Assessment Commission. In fact, we support such a commission but only if it is genuinely independent from the Minister's interference and takes over the Minister's role in determining major project applications. We do not support a Planning Assessment Commission that is nothing more than window-dressing and allows the continuation of the conflict of interest that the Minister has in dealing with major projects put forward by companies that are simultaneously making large—and at times undisclosed—payments to the Minister's party.

The amendment would remove from the Minister the discretion to keep some or all part 3A applications to himself, rather than having them determined by the Planning Assessment Commission. The words we seek to remove by way of the amendment—"if those matters are delegated to it by the Minister"—show that the Planning Assessment Commission is merely a piece of window-dressing from a Minister who does not have the public's trust.

The Minister has made great play of claiming that the Planning Assessment Commission will depoliticise decision making about major projects. In the form outlined in the bill, it will do no such thing because too much discretion as to who is on the Planning Assessment Commission and what the commission does rests with the Minister. To genuinely depoliticise the Planning Assessment Commission, this and other foreshadowed Greens amendments will go some way towards ensuring that the commission is genuinely free of political interference. Greens amendment No. 13 is similar to the previous amendment in that it removes the Minister's control over what functions the Planning Assessment Commission can and cannot undertake.

Greens amendment No. 19 continues the theme of ensuring political independence for the Planning Assessment Commission. It creates a parliamentary oversight committee for the Planning Assessment Commission, similar to those that exist for organisations such as the Independent Commission Against Corruption, the Ombudsman's Office and the Police Integrity Commission. Indeed, I believe the Government is now about to introduce legislation that would move the Crime Commission into a position whereby it would be oversighted by the committee that oversights the Ombudsman's Office and the Police Integrity Commission. Greens amendment No. 19 would also give the parliamentary committee a right of veto over ministerial appointments to the Planning Assessment Commission. This is an essential safeguard in removing the commission from the influence of the Minister. It is particularly important when the Minister's party continues to accept large donations from developers at the same time as those developers have major project applications on the table for consideration.

The Planning Assessment Commission will comprise a chairperson and up to eight part-time commissioners. What concerns me, however, is that all those people will be ministerial appointees, even though they will have to demonstrate experience in planning matters. Pecuniary interests will be disclosed at private meetings of the commission, and presumably the public will only become appraised of them if they get access to a register in which the disclosed pecuniary interests are listed. However, access to that register will only be possible after the payment of a fee that is yet to be determined.

Of course, the Minister has the power to override any of the Planning Assessment Commission's decisions if he so wishes. The Greens believe that this gives the Minister unprecedented discretionary power—not only the current Minister but also future Ministers, regardless of their political hue. The Minister already has the power to create planning controls without undertaking any public consultation whatsoever, controls that are not necessarily disallowable by the Parliament—for example, State environmental planning policies. Once again it demonstrates the Minister's obsession with having absolute control of the significant planning decisions in this State. The Minister has a reputation of wanting to have a finger in every possible pie. I am sure that when part 3A was introduced he envisaged that he would familiarise himself with every application, and I understand that that is what he attempted to do. Significantly, however, I think the job has gotten too much for him.

As has been pointed out, part 3A applications that are either accompanied by or preceded by significant donations to the Labor Party have a tendency to be approved, while part 3A applications that are not accompanied by similar donations are almost overwhelmingly refused. One would hope that by removing decisions to the Planning Assessment Commission the fortunes of the companies that fail to donate to the Labor Party may improve, but of course there is no guarantee of that. Given the Minister's right to appoint or dismiss members of the commission at will, a tendency to independence of thought or action on the part of the commission will be considerably curbed.

The Hon. TONY KELLY

However, the Minister should retain the approval role for critical infrastructure projects because these are essential to the State for economic, social and environmental reasons and because of the serious restrictions on legal challenges that apply to such projects as a result of their categorisation as critical. Statutory bodies such as the Planning Assessment Commission exercise their functions at the request of the responsible Minister. This ensures that the bodies remain accountable to the Minister, who is in turn accountable to the Parliament.

The bill already provides that in making a determination or report or providing planning advice the Planning Assessment Commission is not subject to ministerial direction or control. The Government's proposal ensures that where the Planning Assessment Commission is carrying out an advisory or review role it does so at the request of the Minister, thus ensuring efficient use of resources and that the commission's functions are carried out in a coordinated and effective manner. These amendments would give a joint parliamentary committee an oversight role. For the Planning Assessment Commission such a move would not be appropriate because it would be unprecedented for such an administrative body to be subject to the oversight of a joint statutory parliamentary committee.

There are only five joint statutory parliamentary committees. With the exception of the Legislation Review Committee, these committees exercise an oversight role in relation to the various commissions and other statutory bodies with the extension of potentially oppressive investigative powers. The Committee on Children and Young People was established as part of the Government's response to the Wood royal commission on paedophilia consistent with the recommendations in the commission's report. The committee oversees the Commission on Children and Young People, which has wide-ranging powers to compel the production of information by government departments, including medical and child protection records.

The other three committees—the Committee on the Independent Commission Against Corruption, the Committee on the Health Care Complaints Commission and the Committee on the Office of the Ombudsman and the Police Integrity Commission—have an oversight role in relation to various commissions and other statutory bodies. The establishment of oversight committees in relation to these bodies is appropriate given that they have extensive and potentially oppressive investigative powers that could infringe upon an individual's civil liberties or are charged with protecting public health or safety. However, it is not appropriate for an administrative decision-making body such as a planning assessment commission.

In addition, the bill already contains a broad and appropriate range of accountability provisions for the Planning Assessment Commission. These provisions will ensure public confidence in the proposed commission and that its operations are independent, accountable and transparent. The bill already provides that the Independent Commission Against Corruption will be able to investigate any allegations or complaints of corrupt conduct made against members of the Planning Assessment Commission. The New South Wales Ombudsman will be able to investigate the conduct of the commission and consider any complaints made by members of the public. The New South Wales Auditor-General will also be able to conduct an audit of the activities of the Planning Assessment Commission to determine whether it is carrying out its functions economically and efficiently.

The Environmental Planning and Assessment Act sets out what the commission will be required to consider in making decisions. Any breach of these statutory requirements will be open to legal challenge on administrative law grounds. A joint statutory committee could be supported only where the legislation confers royal commission-type powers like those given to the Independent Commission Against Corruption, the Police Integrity Commission and the Ombudsman or where a body is charged with protecting public health and safety. It would be unprecedented for a body undertaking essentially administrative functions to be subject to this form of oversight. It would also essentially transfer the administration of the planning system from the Government to members of the committee. It would strike at the heart of the separation of powers doctrine that underpins the system of government in New South Wales. For those reasons, the Government opposes the amendments.

Question—That Greens amendments Nos 12, 13 and 19 be agreed to—put and resolved in the negative.

Greens amendments Nos 12, 13 and 19 negatived.

Ms SYLVIA HALE [10.45 p.m.], by leave: I move Greens amendments Nos. 17, 18 and 22 in globo:

No. 17 Page 26, schedule 2.1 [13], proposed section 23E (c), lines 9–12. Omit all words on those lines.

No. 18 Page 26, schedule 2.1 [13], proposed section 23F, lines 27–37. Omit all words on those lines.

No. 22 Page 29, schedule 2.1 [13], proposed section 23L (c), lines 27–29. Omit all words on those lines.

One of the fundamental problems with recent amendments to the Act is that they have delivered a great deal of unfettered discretionary power into the hands of decision makers. It is an important principle of public policy and corruption prevention that the greater the power the greater the need for checks and balances. One of the most important checks that can be placed on discretionary power is a rigorous, open and independent appeal or review process. An important element of any such process is the right to legal representation.

These amendments remove limits to appeal rights and restore the right to legal representation. They seek to address some of the serious concerns about these issues raised in the Legislation Review Committee report on the bill. Amendment No. 17 deals with legal representations before the Planning Assessment Commission. The commission will have enormous power to determine billions of dollars of worth of developments, assuming the Minister refers those developments to the commission. Of course, he is under no obligation to do so. The Greens contend that that represents a serious corruption risk. The commission's decisions and processes must be open to the greatest level of scrutiny and review.

Denying legal representation before the commission will work against individuals. Development companies and significant developers will routinely employ in-house legally qualified staff to argue the company's case before the commission, whereas that expertise will be denied individuals unless they have legal qualifications. The Greens believe that that is a very unfair and imbalanced approach, and certainly one that should not be supported. The same considerations apply when individuals appear before planning arbitrators. Planning arbitrators are a means of outsourcing part of the role of the Land and Environment Court to the private sector. They will have significant power to determine millions of dollars worth of developments. As I said in relation to the commission, that represents a serious corruption risk. The decisions of planning arbitrators and the processes they follow must also be open to the greatest level of scrutiny.

Appeals to the Land and Environment Court relating to planning arbitrator matters will be restricted unless a planning arbitrator has reviewed them or the local council has consented to the appeal being lodged. The period for lodging an appeal with the Land and Environment Court regarding a development assessment matter will generally be reduced from 12 months to three months. Of course, the significant issue is how susceptible planning arbitrators will be to ministerial interference. The arbitrators will be appointed for one year and can be removed for no reason by the Minister. Presumably they will be development professionals. It is worth contrasting the employment arrangements of planning arbitrators with the employment arrangements of Land and Environment Court commissioners. Commissioners work full-time and have a fixed seven-year term. They also receive a salary regardless of whether their determinations support or oppose developments. Of course, the court's hearings are held in public.

Clearly, in the case of the Land and Environment Court, there is a genuine separation of powers and the court is independent of executive government—something that we have seen in a number of decisions made by the court in recent years. Under this legislation councils will not even be able to appeal to the Land and Environment Court to oppose arbitrator reviews, even though they are in the best position to understand the impact of a development and the compliance or otherwise of that development with local codes and instruments. The Local Government Association and community groups are concerned about their limited appeal rights. I believe it is important to re-establish the right to legal representation in the case of any appeal.

The Hon. TONY KELLY

The provisions in the bill will not necessarily prevent people from being represented by a lawyer or other advocate; rather the regulations will set out the circumstances in which leave will be granted to allow representations. This will protect those who effectively are not able to represent themselves. These provisions are not dissimilar from provisions applying to other review bodies such as the Consumer, Trading and Tenancy Tribunal. The Government opposes amendment No. 18, as it would allow appeals from Planning Assessment Commission decisions where there has already been a public hearing. A decision made by the Planning Assessment Commission after lengthy hearings and public involvement would be bogged down in an appeal about issues that have already been subject to substantial public scrutiny.

Since 1979 the Environmental Planning and Assessment Act has made appeal rights subject to a public hearing. The Government's proposal reflects the tried and true provisions of the Act. The Greens amendments treat public involvement and the public hearing system like trash. There is simply no justification for having an appeal right on top of a public hearing. Again, it is simply another process that will make no real difference to environmental standards or the quality of the lives of members of the community. However, it will send this message to investors: Get out of New South Wales. For those reasons the Government opposes Greens amendments Nos 17, 18 and 22.

Question—That Greens amendments Nos 17, 18 and 22 be agreed to—put and resolved in the negative.

Greens amendments Nos 17, 18 and 22 negatived.

Reverend the Hon. FRED NILE [10.53 p.m.], by leave: I move Christian Democratic Party amendments Nos 2 and 3 in globo:

No. 2 Page 28, schedule 2.1 [13], proposed section 23I (3), lines 11–13. Omit all words on those lines. Insert instead:

(3) The members of a panel of experts are to consist of persons having expertise in at least 1 of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration.

No. 3 Page 28, schedule 2.1 [13], proposed section 23J. Insert after line 34:

(c) the provision of information or reports by councils with respect to the exercise of functions by independent hearing and assessment panels and any actions taken or not taken by councils in response to panel assessments.

A number of local councils requested amendment No. 2 because the provision in the bill that this amendment will omit states:

Division 4 Independent hearing and assessment panelsDivision 4 Independent hearing and assessment panels

231 Independent hearing and assessment panels Independent hearing and assessment panels

(3) The members of a panel of experts are to be selected from a list of persons approved for the time being by the Director-General for the purposes of this section.

That means that the director general would have control over the members of this panel, even though they are a panel of experts. My amendment will delete that proposed section and replace it with the words in amendment No. 3, which states:

(3) The members of a panel of experts are to consist of persons having expertise in at least 1 of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration.

Local councils will select a panel of experts, bearing in mind that it should contain at least one person with those qualifications or expertise. That will provide greater transparency and accountability. To achieve such accountability amendment No. 3 will provide:

(c) the provision of information or reports by councils with respect to the exercise of functions by independent hearing and assessment panels and any actions taken or not taken by councils in response to panel assessments.

These independent hearing and assessment panels must provide information or reports by the council to the community so that their whole area of operation is transparent and accountable.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [10.55 p.m.]: The Government supports Christian Democratic Party amendments Nos 2 and 3. The bill contains provisions for councils to establish independent hearing and assessment panels to assess any aspect of a development application or any planning matter referred to it by council. A number of councils have successfully used independent hearing and assessment panels to provide independent advice on development applications. However, a number of panel models have emerged across the State. For greater consistency and transparency the bill introduces standard provisions for the establishment of such panels.

The amendments will ensure that councils select members of a panel who are able to demonstrate relevant expertise. The Government recognises that it is appropriate for councils to appoint panel members, given that councils are best informed about the role that a specific panel will be required to play in that instance. The proposed amendments will achieve consistency across the State by specifying the relevant expertise requirements. The amendments also require reporting by councils on the operation of independent hearing and assessment panels, or IHAPs, in their area, including reporting on actions taken or not taken by councils in response to a panel's assessment. Reporting is an appropriate accountability measure that will strengthen the role of the independent hearing and assessment panels in the planning system. The Government therefore supports these amendments.

Question—That Christian Democratic Party amendment Nos 2 and 3 be agreed to—put and resolved in the affirmative.

Christian Democratic Party amendments Nos 2 and 3 agreed to.

Ms SYLVIA HALE [10.57 p.m.], by leave: I move Greens amendments Nos 23, 31 and 32 in globo:

No. 23 Page 30, schedule 2.1 [13], proposed section 23M, lines 12 and 13. Omit "until after it has consulted with the council". Insert instead ", except with the agreement of the council".

No. 31 Pages 30 and 31, schedule 2.1 [13], proposed section 23O, line 37 on page 30 to line 12 on page 31. Omit all words on those lines.

No. 32 Page 31, schedule 2.1 [13], proposed section 23O (4) and (5), lines 16–24. Omit all words on those lines.

These three amendments deal with cost shifting onto councils. We all know that the Government is determined to make life as difficult as possible for councils. It imposes rate caps and it consistently passes legislation such as this which imposes further—

The Hon. Duncan Gay: Unfunded mandates.

Ms SYLVIA HALE: I agree with the Deputy Leader of the Opposition. That is a perfect description of these provisions. The Government imposes more responsibilities on councils, yet it does not in any way provide them with the means to pay for responsibilities that are forced upon them. Amendment No. 23 is aimed at ensuring the fundamental principle of not imposing costs on another individual or organisation without that individual's agreement or consent. Many aspects of this bill are about loading up costs onto local government. It looks suspiciously like the Government is intent on driving as many councils as possible into financial trouble in order to force amalgamations or dismissals. Local government is held responsible for its financial arrangement and, therefore, is entitled not to have a non-elected body impose major financial burdens on councils without them agreeing to accept that burden.

Amendment No. 31 deals with recovery of costs from councils. Again, the bill has the effect of removing many planning responsibilities from councils while requiring councils to pay the bulk of the costs of the new system. The Green's amendments remove the requirements for councils to pay for the work of organisations over which they have no control or even any say in how they are to be constituted or what work they do. To that extent the financial risk from a complex and cumbersome new set of planning procedures rests entirely with local councils, even though it is the State Government that is introducing the new system. Amendment No. 32 similarly requires the State Government to take financial responsibility for the new bodies it is creating in this bill. Here I think it is worth quoting a few remarks from the member for Murray-Darling in the lower House. He said:

The Hon. Tony Kelly:

Ms SYLVIA HALE: I am sure he does not, but I am prepared to acknowledge that when people have reasonable things to say and make reasonable points it is worth quoting them.

The Hon. Duncan Gay: He is the new sober one.

Ms SYLVIA HALE: Yes, he is more upright, shall we say, than the previous member. He said:

The Hon. Duncan Gay: A fair point. I do not think the Property Council thinks that far.

Ms SYLVIA HALE: Possibly not. I am sure the Property Council's interests do not extend beyond the boundaries of Sydney, Newcastle or Wollongong. There is great concern that councils are being called upon to give indemnities for planning arbitrators. Planning arbitrators may, because of the pressure under which they will be making decisions—I think they have to make a decision within 10 days—make a decision that is wrong in law, and then there is always the possibility of an appeal to legal proceedings on the grounds of denial of procedural fairness or some sort of administrative error. If the planning arbitrator makes a decision that the council fundamentally disagrees with and there is an appeal against that decision and the decision is upheld, again the council will have to pick up the cost. This is totally unacceptable. I think most people realise how inherently unfair that is. Why should local ratepayers—and this is what it comes down to, it does not come down to the council playing for it—be liable for legal costs incurred by an inept or dodgy planning administrator who was ultimately selected and appointed by the Minister?

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Minister for the Central Coast, and Vice-President of the Executive Council) [11.03 p.m.]: The Government opposes Greens amendments Nos 23, 31 and 32 because, with respect to decisions that have a financial impact on a council, the factors that must be taken into account by the Planning Assessment Commission or a joint regional panel in making a decision are already set out in the Act. The commission or panel would be prevented from determining development applications or project applications, or making other decisions on their merits, if they had to act only in agreement with council. It is not appropriate for the possible financial impact of a decision on a council to be a determining factor in the commission's or a panel's decision making. The bill includes a consultation requirement using similar statutory provisions applying to the Central Sydney Planning Committee. This is appropriate and measured. The Greens amendment is not.

The cost recovery provisions apply only to circumstances where the Planning Assessment Commission, joint regional planning panels or arbitrators are undertaking functions that would otherwise be undertaken by a council. Similar provisions already apply under the Environmental Planning and Assessment Act with respect to planning assessment panels. Councils will continue to collect development application and review fees. It is appropriate that these fees be applied to fund the cost of the commission, joint regional planning panels and arbitrators. The Government has given an undertaking to review the fee provisions in the Environmental Planning and Assessment Regulation to ensure these measures are cost neutral to councils. The Government opposes the amendments.

Question—That Greens amendments Nos 23, 31 and 32 be agreed to—put.Question—That Greens amendments Nos 23, 31 and 32 be agreed to—put.

The Committee divided.

Ayes, 4

Mr Cohen
Ms Hale

Tellers,
Dr Kaye
Ms Rhiannon

Noes, 28

Mr Ajaka
Mr Brown
Mr Catanzariti
Mr Clarke
Mr Colless
Mr Costa
Ms Ficarra
Miss Gardiner
Mr Gay
Ms Griffin

Mr Kelly
Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Primrose
Ms Robertson

Mr Smith
Mr Tsang
Mr Veitch
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Harwin

Question resolved in the negative.

Greens amendments Nos 23, 31 and 32 negatived.

Ms SYLVIA HALE [11.12 p.m.]: I move Greens amendment No. 27:

No. 27 Page 30, schedule 2.1 [13], proposed section 23N (2), lines 24–29. Omit all words on those lines.

The purpose of this amendment is to remove the penalties for general managers who do not follow reasonable directions from the Planning Assessment Commission or a planning arbitrator. The Greens believe proposed section 23N (2) is a harsh and unnecessary imposition on general managers of councils, particularly given that the commission and arbitrator are not elected and are not directly accountable to the council or another Crown authority. It is unconscionable to put an individual in the position of being threatened with a penalty for not doing the bidding of an external body or individual that does not employ them. General managers are answerable to council and, presumably, should council instruct a general manager not to act in a certain way, or not to cooperate with a commission or the demands of an arbitrator, for example, he or she will be put in an invidious position.

Yet, if the general manager is so instructed and follows the instruction of his employers, he or she is then exposed to criminal penalties or a fine of up to $1,000. It is not an appropriate provision. One assumes that this provision is included in the bill because the Minister is aware of council opposition to the bill and of the decision of a meeting of mayors in January this year that threatened to withhold section 94 levies from the Minister. Obviously, this provision applies not so much to the withholding of funds or levies but certainly is a direction to general managers. Again, this provision seeks to usurp and overturn the authority of councils in relation to a significant employee.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.15 p.m.]: The Government opposes Greens amendment No. 27. Proposed section 23N (2) is a necessary protection to ensure that the Planning Assessment Commission regional panels and planning arbitrators are not frustrated in carrying out their statutory functions by the wilful obstruction of general managers or council staff. It provides appropriate safeguards for what is assumed to be a rare occurrence. Appropriate controls and limitations apply in relation to such directions—for example, the directions must be reasonable and must relate to the proper exercise of statutory functions by the commission, panel or arbitrator. It is necessary to include this provision to assist general managers and council staff in resolving difficulties that may arise when they received conflicting instructions from the council and the commission, panel or planning arbitrator. This provision ensures that the general manager's and staff obligations are clear. The Government opposes the amendment.

Question—That Greens amendment No. 27 be agreed to—put and resolved in the negative.

Greens amendment No. 27 negatived.

Mr IAN COHEN [11.17 p.m.]: I move Greens amendment No. 33:

No. 33 Page 31, schedule 2.1. Insert after line 29:

[14] Section 75F Environmental assessment requirements for approval

Omit "may" from section 75F (1). Insert instead "must".

This amendment requires the Minister for Planning to consult with the Minister for the Environment and publish guidelines in the Government Gazette with respect to environmental assessment. This is not negotiable. There is simply no justification for discretion in the context of part 3A where the utmost stringent requirements are demanded to counterbalance or offset the concentration of power. I anticipate the Government will say the Minister is answerable to the Parliament and that will provide adequate inducement for the Minister to comply with the discretionary processes outlined in the section. Considering the tardiness of certain Ministers to comply with statutory deadlines, I suggest that the answerability to Parliament provides no such inducement. One of the great paradoxes of any debate over part 3A and any amendments to the section is the dual call for ministerial discretion and certainty for business.

In the same convoluted and contradictory breath Labor will talk about the need for ministerial discretion in the part 3A approval process while concurrently spruiking the need for business certainty. Taking a trip back in time to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill, I recall then Minister Craig Knowles critiquing the member for Bligh, Clover Moore, lamenting the discretionary language littered throughout part 3A. The Hon. Craig Knowles said of the member for Bligh's contribution:

The honourable member for Bligh read onto the record, I think without necessarily understanding it, her great anxiety about the use of the word "may" as opposed to the word "shall" as if it were some sort of titanic shift in the principles underpinning the Environmental Planning and Assessment Act. The word "may" has been incorporated in the planning Act since 1979. The use of the word "may", the discretionary power, as opposed to the word "shall", the obligatory power, has always been reflected in the Act, and there is no change. Indeed, it is a direct carryover. I implore those who read the second reading debate to view some of the contributions as little more than ideology and dogma and not based on fact or the content of the bill.

If Labor were so preoccupied with ensuring business certainty and certainty in development approval process, why is part 3A littered with discretionary non-committal language? If business and developers require economic environmental certainty, would not the best way to achieve certainty be to remove the maze? The reality is that the discretionary language is used whenever environmental constraints or checks and balances are involved. There is one rule for the environment and another for development. There is no synergy between development and environmental objectives and the bill reinforces the hierarchy, with environment at the bottom of the pile. There is no argument for ministerial flexibility in this case. I commend Greens amendment No. 33 to the Committee.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.20 p.m.]: The Government opposes Greens amendment No. 33 because it is appropriate for guidelines under part 3A to be developed following consultation with agencies. This process is ongoing and will be informed by the current practices of the Department of Planning in assessing part 3A projects. Guidelines should only be published when they are necessary and assist, not merely for their own sake. For these reasons the Government opposes the amendment.

Question—That Greens amendment No. 33 be agreed to—put and resolved in the negative.

Greens amendment No. 33 negatived.

Mr IAN COHEN [11.21 p.m.]: I move Greens amendment No. 34:

No. 34 Page 31, schedule 2.1. Insert after line 33:

[15] Section 75F (5)

Omit "may". Insert instead "must".

[16] Section 75H Environmental assessment and public consultation

Omit "provide copies of submissions received by the Director-General or a report of the issues raised in those submissions" from section 75H (5).

Insert instead "publish copies of submissions received by the Director-General on a website maintained by the Department within one week of receiving those submissions and provide a copy of those submissions".

[17] Section 75H (5A)

Insert after section 75H (5):

(5A) Before providing a copy of, or publishing, a submission, the Director-General may remove any material from the submission that, in the opinion of the Director-General:

(a) identifies the person who made the submission, or

(b) is of a defamatory or offensive nature, or the disclosure of which would contravene any law.

[18] Section 75I Director-General's environmental assessment report

Insert ", any submission received from any person about the assessment under section 75H" after "environmental assessment" in section 75I (2) (a).

[19] Section75J Giving of approval by Minister to carry out project

Insert after section 75J (5):

(6) Environmental effects

Despite any other provision of this Act, the Minister must not grant approval for a project if an environmental assessment prepared for the purposes of this Part demonstrates that the project will have a significant adverse effect on threatened species, populations or ecological communities or on the environment.

[20] Section 75T, 75U and 75V

Omit the sections.

This amendment principally deals with public consultation in the part 3A process and the ability of the community to seek review of development approvals. I have dealt with ministerial discretion and will not repeat that for the purpose of justifying item [15]. Item [16] is essential for establishing a forum in the public sphere for community members and stakeholders to debate and discuss proposals. Website publication of submissions will stop Ministers from exercising ad hoc powers to block the release of submissions, similar to those we have witnessed. This amendment is essential to the concept of transparency about which the Minister has spoken at length. Item [17] is important to ensure that submissions are not judged or evaluated on the basis of which individual made the submission and this amendment gives the director general the discretion to keep hidden the identity of people making submissions.

In relation to item [18], public submissions must be included in the director general's report to the Minister to ensure that the Minister is fully cognisant of a broad spectrum of positions and opinions. New section 19 creates a fundamental synergy between the Environmental Planning and Assessment Act and legislation protecting threatened species, populations or ecological communities. It ensures that if an environmental assessment reveals significant adverse effects on threatened species, populations or endangered ecological communities the Minister cannot grant approval to the project.

Item [20] removes the provision that blocks community and third party appeals to critical infrastructure projects. The amendment also removes a planning process whereby the interface with other legislative frameworks is ignored. It smashes the iron fist of the Minister's centralised power over critical infrastructure approvals, an iron fist that ignores any other legislative framework. It is imperative that we pursue the restoration of community confidence by opening avenues for reviews. I commend Greens amendment No. 34.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.33 p.m.]: The Government opposes Greens amendment No. 34 because it seeks to make a number of changes to part 3A of the Environmental Planning and Assessment Act, which has been operating successfully for three years. A flexible system under part 3A enables the level of environmental assessment to be tailored to the particular project and its potential environmental impact. In practice, all projects approved under part 3A undergo a rigorous environmental assessment before being determined. An amendment to make environmental assessment under part 3A mandatory is unnecessary.

The amendment seeks to require the Department of Planning to publish all submissions received in relation to an environmental assessment on its website and to require all submissions to be included in the director general's report, which is also published on the website. These proposals are unworkable and would create a major resource issue for the Department of Planning. It places an unreasonable burden on the department in requiring it to remove identifying material and vouch that none of the material is defamatory or breaches the privacy of individuals. Should an error be made, the department and the taxpayer would be exposed to risk of expensive legal action. The current method of dealing with submissions by way of publishing a summary report of submissions is appropriate and will be maintained.

The Greens amendment requiring a proposal to be automatically refused if any report submitted by the proponent finds that there would be a significant adverse impact on a threatened species or the environment does not allow scope to consider offset proposals or other compelling public interest reasons, which may be in favour of project approval. The Greens amendment may also encourage proponents to shop around for consultants' reports that downplay any impact on threatened species. The amendment would allow appeals against critical infrastructure projects. This would mean that projects that are essential to the State for economic, social and environmental reasons would be delayed with costly appeals, which is not appropriate. The Greens amendment also seeks to delete section 75U and section 75V from the Act. These are important provisions that have cut red tape and promoted a whole-of-government approach to the assessment of major projects. For these reasons the Government opposes the amendment.

Question—That Greens amendment No. 34 be agreed to—put.

The Committee divided.

Ayes, 4

Ms Hale
Dr Kaye

Tellers,
Mr Cohen
Ms Rhiannon

Noes, 27

Mr Ajaka
Mr Brown
Mr Catanzariti
Mr Clarke
Ms Ficarra
Miss Gardiner
Mr Gay
Ms Griffin
Mr Kelly
Mr Khan

Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Pearce
Mr Primrose
Ms Robertson
Mr Smith

Mr Tsang
Mr Veitch
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Harwin

Question resolved in the negative.

Greens amendment No. 34 negatived.

Mr IAN COHEN [11.33 p.m.]: I move Greens amendment No. 35:

No. 35 Page 32, schedule 2.1. Insert after line 32:

[20] Section 80 Determination

Insert after section 80 (12):

(13) Environmental effects

Despite any other provision of this Act, a consent authority must not grant development consent for development if an environmental impact statement, species impact statement or statement of environmental effects accompanying the development application demonstrates that the development will have a significant adverse effect on threatened species, populations or ecological communities or on the environment.

This amendment merely repeats Greens amendment No. 34, which sought to insert environmental control into section 75J. I commend Greens amendment No. 35 to the Committee.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.33 p.m.]: The Government opposes Greens amendment No. 35 because it will require a proposal to be automatically refused if any report submitted by a proponent finds that the proposal would have a significant adverse impact on a threatened species or the environment, regardless of whether there are any appropriate offset or mitigation measures proposed or compelling public interest reasons for approval.

The amendment effectively will mean that most developments requiring an environmental impact statement or a species impact statement will be refused. The amendment will also create a situation in which proponents are encouraged to shop around for consultants' reports that downplay any impact on threatened species. For those reasons the Government opposes the amendment.

Question—That Greens amendment No. 35 be agreed to—put and resolved in the negative.

Greens amendment No. 35 negatived.

Ms SYLVIA HALE [11.34 p.m.], by leave: I move Greens amendment Nos 49, 52, 64 and 65 in globo:

No. 49 Page 40, schedule 2.1 [36], proposed section 96E (1) and (2), lines 28–33. Omit all words on those lines.

No. 52 Page 41, Schedule 2.1 [36], proposed section 96E (9) and (10), lines 20–29. Omit all words on those lines.

No. 64 Page 62, schedule 2.2. Insert after line 34:

[2] Section 75C Critical infrastructure projects

Omit ", 75L" from paragraph (a) of the note.

No. 65 Page 63, schedule 2.2 [6], lines 13–16. Omit all words on those lines. Insert instead:

[6] Section 75L Appeals by an objector

Omit section 75L (1).

The object of these amendments is to remove restrictions that the bill will place on the rights of objectors to have a decision reviewed. One of the fundamental problems with the recent changes to the Act is that they delivered a great deal of unfettered discretionary power into the hands of decision makers. As I have said before, it is an important principle of public policy and corruption prevention that the greater the power, the greater is the need for checks and balances. Amendment No. 49 seeks to determine who is eligible to apply for a review. New section 96E in schedule 2 states in item [36]:

96E Applications for review—objectors96E Applications for review—objectors

(1) This section applies to development applications of a class prescribed by the regulations for the purposes of this section.

The new section also states in subsection (3) that an objector may make an application for a review, provided that the objector is not the applicant, which is reasonable, provided that the person has made a submission objecting to the development in accordance with regulations made under section 79AA, and provided that the person owns land within one kilometre of any point on the boundary of the land that is the subject of the development application. It is up to the Minister to set the regulations that state, in effect, that only people who have submitted objections and who live within an incredibly narrow area, which is one kilometre from any point of the boundary of the land that is the subject of a development application, may apply for a review. One assumes the provision means that to be able to object to a development, an applicant must live in the immediate vicinity or very close to a development.

Lots of objections are lodged because of the broad impact of a development upon a community. Objections are not lodged solely on the basis that someone will lose privacy, a dwelling will be overshadowed, or noise will emanate from the development. Objections can be for a whole range of reasons, yet clearly the provision will prevent people who have broader community concerns—such as a consequent loss of open space, a development not being provided with appropriate infrastructure and public transport, or heritage protection—from lodging an objection simply because they do not live within one kilometre of the development.

Similarly, amendment Nos 64 and 65 deal with eligibility to appeal in relation to critical infrastructure projects. Critical infrastructure projects are solely within the decision of the Minister. Those projects will not be referred to the Planning and Assessment Commission but, rather, will remain in house and will be determined by the Minister. There will no right to an appeal against such projects. The Legislation Review Committee, whose report I will address later, clearly had deep reservations about the failure to allow adequate appeal rights, which it contends is fundamentally opposed to appropriate rights of the individual. The Greens support the amendments and urge other members to do so also.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.41 p.m.]: The Government opposes Greens amendments Nos 49, 52, 64 and 65 because the provisions included in the bill introducing third party reviews are consistent with the recommendations of the Independent Commission Against Corruption and are designed to make councils more accountable when making decisions that would breach controls. The proposed amendments would mean that any person living within one kilometre of a development would have a right of review to the Planning Assessment Commission, regardless of the size or nature of the development.

A neighbour would be able to seek a review by the Planning Assessment Commission even if the development complies with all the relevant development controls. That would add additional expense and time delays and cause the planning system to become bogged down with reviews and appeals. It would be totally unworkable. The third party reviews in the bill specifically target developments that would exceed development standards for controls such as height and floor space ratios by significant margins. With respect to the Greens proposed amendments to part 3A, the existing provisions in part 3A of the Environmental Planning and Assessment Act allow for third party appeals in certain circumstances. The bill does not alter those appeal provisions. The removal of any restriction on objector merit appeals against part 3A project approvals would result in projects being delayed by costly appeals when the issues raised have been thoroughly considered and addressed by a public hearing before a panel. For those reasons the Government opposes the amendments.

Question—That Greens amendments Nos 49, 52, 64 and 65 be agreed to—put.

The Committee divided.

Ayes, 4

Ms Hale
Dr Kaye

Tellers,
Mr Cohen
Ms Rhiannon

Noes, 27

Mr Ajaka
Mr Brown
Mr Catanzariti
Mr Clarke
Ms Ficarra
Miss Gardiner
Mr Gay
Ms Griffin
Mr Harwin
Mr Kelly

Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mr Pearce
Mr Primrose
Ms Robertson
Mr Smith

Mr Tsang
Mr Veitch
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mrs Pavey

Question resolved in the negative.

Greens amendments Nos 49, 52, 64 and 65 negatived.

Ms SYLVIA HALE [11.49 p.m.]: I move Greens amendment No. 56:

No. 56 Page 48, schedule 2.1. Insert after line 17:

[40] Section 118 (1) (b)

Omit the paragraph. Insert instead:

(b) the Minister is satisfied that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters or the time taken, or

This amendment provides that the Minister must satisfy himself of unsatisfactory conduct before removing a council's planning powers. He does not have to merely form an opinion that the planning powers should be removed; he must satisfy himself of that. The implication is that the Minister will be obliged to have reasonable grounds to be satisfied, and therefore he will be obliged, presumably, to substantiate his decision. The Greens believe that it is not sufficient that the Minister merely be of the opinion that a council's planning powers should be removed.

The complete removal of a council's planning powers—although many council planning powers are being removed tonight—is a drastic step. Such a decision is often met with great community outrage, regardless of the wrongs or rights of the matter. Certainly, the people of Ku-ring-gai are upset that their council's planning powers have been removed. This amendment would at least require the Minister to provide substantive and justifiable reasons for reaching such a decision.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.51 p.m.]: The Government opposes Greens amendment No. 56. The proposal seeks to amend section 188 of the Act to restrict the matters that could constitute unsatisfactory council performance. The way in which a council handles applications and the time taken to determine applications are not the only factors that may be relevant to the decision to appoint a planning administrator or a panel to carry out certain functions of the council. As required by the Act, the Minister for Planning has already gazetted an order setting out heads of consideration to be taken into account when determining whether to appoint a planning administrator or a panel to exercise functions of a council. That order sets out other relevant heads of consideration that may warrant the appointment of a panel, including the proper management of developer contributions and conflicts of interest. Appropriate procedural fairness obligations apply to the Minister when appointing a panel. For those reasons the Government opposes the narrowing of the scope of the planning assessment panel provisions already contained in the Act.

Question—That Greens amendment No. 56 be agreed to—put and resolved in the negative.

Greens amendment No. 56 negatived.

Ms SYLVIA HALE [11.52 p.m.]: I move Greens amendment No. 61:

No. 61 Pages 50 and 51, schedule 2.1 [53], proposed section 118AG, line 18 on page 50 to line 23 on page 51. Omit all words on those lines.

This amendment deals with the exercise of certain functions by the Minister. The provisions of this proposed section are extraordinarily wide. I invite members to read it. Earlier the Minister said that the Minister for Planning would follow the rules of procedural fairness when appointing individuals. Proposed section 118AG provides:

(1) This section applies to any function (a protected function) conferred or imposed on the Minister (including a delegate of the Minister) relating to the appointment of a planning administrator or planning assessment panel, or the conferral of functions on a regional panel, under this Division.

(2) The exercise by the Minister of any protected function may not be:

(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings.

(3) Without limiting subsection (2), that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with the provisions of this Division or the rules of natural justice (procedural fairness).

This will prevent any court of law or administrative review body having the power or jurisdiction to consider any question involving issues of compliance or non-compliance by the Minister in relation to the appointment of individuals. The powers given to the Minister are extraordinary. In the context of infringing on personal liberties and the removal of many powers that are often taken for granted in the judicial system, it is worth considering Legislation Review Digest No. 7, paragraph 77, which states:

Paragraph 81 states:

Paragraph 83 states:

Paragraph 103 of the report states:

Paragraph 104 states:

The Committee also considers that in the circumstances of where there is no requirement for consultation with other Ministers and public authorities (other than the Director-General of National Parks and Wildlife) in the drafting and preparing of the SEPPs, along with the wide power of the Minister to determine any matter that is, in the opinion of the Minister, of State or regional environmental planning significance, may make personal rights and liberties unduly dependent on an unfettered discretion on the making of SEPPs and an insufficiently defined administrative power. Accordingly, the Committee refers this to Parliament.

Paragraph 107 states:

The Committee notes that the scope for the Minister's determination with regard to gateway determination as set out in the above proposed section is very wide, including the extent for community consultation requirements and other consultation

Paragraph 108 states:

The Committee considers that this may make individual rights and liberties unduly dependent on an insufficiently defined administrative power

And so on. It is breathtaking that the powers the Minister has aggregated to himself will be unfettered and unchecked. It is extraordinary that we could pass a bill that will prevent any appeals, regardless of the rules of natural justice or procedural fairness. It is extraordinary that the exercise of a protected function by the Minister may not be challenged, reviewed, quashed or called into question before a court of law. I fail to understand how the Committee can casually accept such provisions.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [11.59 p.m.]: The Government opposes Greens amendment No. 61 because the appointment of an administrator or planning assessment panel is a sanction against councils failing to comply with obligations under the planning legislation in unsatisfactory performance or corrupt conduct on the part of the council. The provisions of the bill are designed to protect the community and the individual ratepayers who might otherwise be disadvantaged or affected by the actions of a council in failing to meet its obligations under the planning laws. Where such action is necessary and warranted, ratepayers should not be subject to further costs and delays arising from drawn out court proceedings challenging the validity of an order. The bill includes appropriate procedural fairness provisions to ensure councils have been given the opportunity to make their case before any decision is made to appoint a panel or administrator. For these reasons the Government opposes the amendment.

Question—That Greens amendment No. 61 be agreed to—put.

The Committee divided.

Ayes, 4

Ms Hale
Dr Kaye

Tellers,
Mr Cohen
Ms Rhiannon

Noes, 26

Mr Ajaka
Mr Brown
Mr Catanzariti
Mr Clarke
Ms Ficarra
Miss Gardiner
Mr Gay
Ms Griffin
Mr Kelly

Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Reverend Nile
Ms Parker
Mrs Pavey
Mr Primrose
Ms Robertson

Mr Smith
Mr Tsang
Mr Veitch
Ms Voltz
Mr West
Ms Westwood
Tellers,
Mr Donnelly
Mr Harwin

Question resolved in the negative.

Greens amendment No. 61 negatived.

Ms SYLVIA HALE [12.07 p.m.]: I move Greens amendment No. 70:

No. 70 Page 81, schedule 2.10 [12], proposed clause 268K (3), line 31. Omit "and for no reason". Insert instead "for misconduct".

The purport of this amendment is to remove the ability of the Minister to remove a planning arbitrator at any time and for no reason. It provides that the Minister should at least have a reason—misconduct—to dismiss a planning arbitrator. This is a mechanism for protecting arbitrators from political interference by the Minister.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.08 p.m.]: The Government opposes Greens amendment No. 70. It would unnecessarily interfere with the Minister's ability to ensure that only appropriate and qualified people are listed on the planning arbitrator register. The Minister should be able to take into consideration more than demonstrated misconduct in determining whether a person is suitably qualified to continue to act as a planning arbitrator. For example, there will be a requirement for arbitrators to be subject to a code of conduct. In addition, a complaints system will operate with respect to arbitrators. It is appropriate that regard be had to breaches of the code, or the nature and extent of complaints made against an arbitrator, in deciding whether they should continue to be on the register. For these reasons the Government opposes the proposed amendment.

Question—That Greens amendment No. 70 be agreed to—put and resolved in the negative.

Greens amendment No. 70 negatived.

Ms SYLVIA HALE [12.10 a.m.], by leave: I move Greens amendments Nos 71, 73, 74, 77 and 78 in globo:

No. 71 Page 85, schedule 3.1 [6], proposed section 116D (b), lines 31–33. Omit all words on those lines.

No. 73 Pages 88–92, schedule 3.1 [6], proposed sections 116I–116L, line 30 on page 88 to line 2 on page 92. Omit all words on those lines.

No. 74 Page 95, schedule 3.1 [6], proposed section 116V, lines 1–32. Omit all words on those lines.

No. 77 Page 102, schedule 3.1 [7], proposed clause 7, lines 8–25. Omit all words on those lines.

No. 78 Pages 119 and 120, schedule 3.3 [4], proposed clauses 31A and 31B, line 6 on page 119 to line 12 on page 120. Omit all words on those lines.

The purpose of these amendments is to assist councils to require affordable housing levies from developers. The effect of Greens amendment No. 71 would be to remove from section 116D, which deals with key considerations for development contributions, the words "What will be the impact of the proposed development contribution on the affordability of the proposed development?" The reason for this amendment is that section 94 contributions are not the key driver of declining affordability. Where a council wishes to impose a contribution requirement, including an affordable housing levy, it will need to consider this matter. If a levy for affordable housing could create a negative impact on affordability of a development then the subsection, as it stands, on housing developments could undermine the imposition of contributions.

Greens amendment No. 73 would remove most of the sections of the bill that changes arrangements for the collection and expenditure of infrastructure levies. The Government has not demonstrated that the current arrangements require overhaul, particularly when the proposed overhaul appears to shift power and revenue towards the Minister and costs towards council. Certainly the Local Government and Shires Associations believe very strongly that council should retain responsibility for the collection and holding of local development contributions in growth centres. Of course, another concern is the ability of the Minister not only to determine what the levy will be spent on but actually how much will be collected in levies. The legislation enshrines a new form of State taxation, state infrastructure contributions, with no appeal rights, and minimal provisions with respect to accountability and transparency.

Greens amendment No. 74 would delete the words "Council planning agreements limited to key community infrastructure". The Greens say that the status quo of what comprises infrastructure should not be too tightly prescribed. This bill limits key community infrastructure in the regulations. On top of that, the Minister can say what is or is not allowable. Being excluded from key community infrastructure definitions will block affordable housing levies. Amendment No. 74 would simply delete the entire section and empower councils to decide what levies they should impose, and for what public purpose, without being limited by overly prescriptive regulations and by the Minister's say so. Greens amendment No. 77 would remove the power of the Minister to direct councils as to how they are to spend levies. Greens amendment No. 78 would remove the restrictive definitions of "community infrastructure".

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.13 a.m.]: The Government opposes Greens amendments Nos 71, 73, 74, 77 and 78. The bill contains a number of new accountability requirements for contribution plans, including measures to ensure that contributions are delivered in a reasonable time and will not adversely impact on housing affordability. The Greens amendment would remove any requirement to consider the impact of a contribution on affordability of development, which could lead to council levies making construction of new housing uneconomical. The requirement to consider the impact of the proposed contributions is a key housing affordability issue. The amendment would also remove measures designed to ensure councils can be held accountable and that infrastructure for which money has been collected will be delivered in a timely manner to meet local needs.

The amendment would also give councils carte blanche to raise development contributions unaffected by the accountability measures included in the bill or even the protections of existing legislation. It would give free reign to councils to raise what amounts to an uncapped backdoor tax on homebuyers. The amendment would remove the distinction between key and additional community infrastructure that allows the Minister an approval role if councils seek to levy for additional community infrastructure. Under the Greens amendment councils would not have to justify any levy for additional community infrastructure. The Greens amendment would remove the existing requirement that there be some nexus between the contribution and development proposal. Housing affordability would suffer as a result. It will be mums and dads who would pay. The amendment also would remove the existing directions powers that have been used to prevent councils from milking homebuyers with inappropriate levies. Thanks to the Greens, if this amendment were passed, there would be no means to control this backdoor tax.

The bill contains new accountability requirements for contribution plans, including measures to ensure that contributions are delivered in a reasonable time, will not adversely impact on housing affordability and, importantly, will only be spent on infrastructure that should appropriately be funded by developer contributions. A directions power is necessary to ensure, amongst other things, that councils use unspent contributions to provide new infrastructure to new and existing communities within reasonable time frames. The bill's provisions essentially replicate the existing directions powers that have been in the Act for some time. For those reasons the Government opposes the proposed amendments.

Question—That Greens amendments Nos 71, 73, 74, 77 and 78 be agreed to—put and resolved in the negative.

Greens amendments Nos 71, 73, 74, 77 and 78 negatived.

Ms SYLVIA HALE [12.16 a.m.]: I move Greens amendment No. 72:

No. 72 Page 86, schedule 3.1 [6], proposed section 116E. Insert after line 32:

(4) The requirements prescribed under this section must, as far as practicable, be the same for all planning authorities.

This amendment would ensure that the accountability mechanisms that are introduced for councils and other local planning authorities are, as far as is practicable, the same as those applied to State-level planning authorities.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.16 a.m.]: The Government opposes Greens amendment No. 72 because the provision is unnecessary. The relevant provision in the bill makes clear that the requirement to be contained in the regulations requiring the collection and publication of information about the determination, collection and use of contributions can apply to all planning authorities. The bill allows appropriate regulations to be prescribed for all planning authorities. For those reasons the Government opposes the proposed amendment.

Question—That Greens amendment No. 72 be agreed to—put and resolved in the negative.

Greens amendment No. 72 negatived.

Ms SYLVIA HALE [12.17 a.m.], by leave: I move Greens amendments Nos 75 and 76 in globo:

No. 75 Page 96, schedule 3.1 [6], proposed section 116Y (1), lines 23 and 24. Omit all words on those lines. Insert instead:

(1) This section applies if a local environmental plan identifies that there is a need for affordable housing within an area to which the plan applies.

No. 76 Page 97, schedule 3.1 [6], proposed section 116Y (4) and (5), lines 8–18. Omit all words on those lines. Insert instead:

(4) A condition may be imposed under this section only if the condition is authorised to be imposed by a local environmental plan and is in accordance with a scheme for dedications or contributions set out in or adopted by the plan.

These amendments deal with the ability to levy for affordable housing. Amendment No. 75 refers to section 116Y, conditions requiring land or contributions for affordable housing. The amendment would remove subsection (1) which requires that a State environmental planning policy [SEPP] may identify that there is a need for affordable housing within an area. The current SEPP 70 does identify a handful of sites but the Greens believe that local councils, which have considerable local knowledge, should be the ones to define where affordable housing is needed, rather than having to rely upon an area being listed in a SEPP. Of course, the Minister has sole control over what goes into that SEPP. Certainly in the past councils have tried to have an area or areas listed in SEPP 70. For example, Parramatta council made quite valiant endeavours in that regard, but the response has consistently been one of silence.

Therefore, rather than the requirement that a State environmental planning policy is needed in order to identify an affordable housing problem in an area, the Greens contend that a local environmental plan can and should deal with the issue and the decision as to whether provisions for affordable housing are required should be left with the council. Undoubtedly, the Government will claim, as it has claimed for many years, that it is about to release a new affordable housing State environmental planning policy plan. Those in the sector say that they have been hearing about this elusive new State environmental planning policy plan for the past 10 years. We need to forget about the State environmental planning policy plan, abandon the wait, and let councils get on with the job where they identify the need for affordable housing. Sydney as a global city and the State's regions cannot institute inclusionary rezoning, yet countries such as Canada and cities such as London and New York and hundreds of American cities do. This amendment will bring the decision concerning affordable housing back to the council level.

Greens amendment No. 76 amends section 116Y (4) and (5) by removing reference to a State environmental planning policy plan. Therefore, if the local environmental plan allows for a condition relating to affordable housing, it can impose such a condition without having any reference to a State environmental planning policy plan. Councils would have the power to levy for affordable housing. This would remove the ban on levying for affordable housing contributions in State contribution areas. I do not believe that this ban is in place. The growth centres—north-west and south-west Sydney and areas such as Wollongong—need affordable housing included in new housing developments. People are struggling with private rental and mortgages in these areas. Clearly, many are not coping. Those currently suffering housing stress on low to moderate incomes would be the beneficiaries of new affordable housing supply in growth areas. Landcom and developers could provide a percentage of new dwellings for affordable purchase or rental based on applications for means tests. This amendment removes section 116Y (5), which states that a condition is not to be imposed in State contribution areas. The Greens argue it is often the case where that condition needs to be applied.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.22 a.m.]: The Government opposes Greens amendment Nos 75 and 76 because the Act currently requires a State environmental planning policy to establish a clear and accountable scheme for the provision of affordable housing. The provisions in the bill are essentially a restatement of those requirements. State environmental planning policy plan No. 70 provides the machinery to implement affordable housing schemes and has been in place since 2002. The State environmental planning policy plan promotes a consistent approach to affordable housing across metropolitan Sydney. The amendment would allow such a scheme to be created in any local environmental plan and would result in a proliferation of potentially different affordable housing models across the State. It is more appropriate that consistent affordability housing provisions are contained in a State policy. For these reasons, the Government opposes the proposed amendments.

Question—That Greens amendments Nos 75 and 76 be agreed to—put and resolved in the negative.

Greens amendments Nos 75 and 76 negatived.

Reverend the Hon. FRED NILE [12.23 a.m.], by leave: I move Christian Democratic Party amendments Nos 10 and 11 in globo:

No. 10 Page 114, schedule 3.2 [1], line 9. Insert "and the trustees appointed under subsection (9)" after "Director-General".

No. 11 Page 115, schedule 3.2 [1]. Insert after line 10:

(9) The Minister is to appoint an independent board of 6 trustees for the purposes of this section, comprising 2 representatives of local government, 2 representatives of the Department of Planning, and 2 representatives of the Treasury nominated by the Treasurer.

The purpose of the amendments follows the creation of the Community Infrastructure Trust Fund. After reading pages 114 and 115 of the bill, I have proposed an amendment to address the way in which the fund is administered. Some councils have expressed concerns to me, which may be unjustified, that if the Government needed additional funds, the Treasurer may transfer this large amount of money in the trust fund—possibly $70 million or $80 million—into Government funds as consolidated revenue. I do not know whether that would be legal, but they have expressed that fear. I considered the best way to address the problem is to appoint trustees. After much consideration, I propose amendment No. 10 which inserts the words "and the trustees appointed under subsection (9)" after the words "Director-General". Amendment No. 11 amends schedule 3.2 [1] on page 115 by inserting after line 10:

(9) The Minister is to appoint an independent board of 6 trustees for the purposes of this section, comprising 2 representatives of local government, 2 representatives of the Department of Planning, and 2 representatives of the Treasury nominated by the Treasurer.

The earlier draft does not contain the words "nominated by the Treasurer". Those words clarify the way in which representatives are appointed. This amendment makes it clear that they are not appointed by the Minister for Planning. That would mean crossing over into another Minister's portfolio. Although I had assumed that the two representatives would be nominated by the Treasurer, I have made it clear in the amendment. The two representatives of the Department of Planning will be appointed by the Minister for Planning and the two representatives of local government will come from the councils in the growth centre. The councils would hold a regional meeting to elect two representatives. I have not laid down the procedure by which that would happen. This amendment provides additional accountability and transparency to a very important aspect of the legislation. I move these amendments and trust that the House will support them.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.27 a.m.]: The Government supports the proposed amendments. The bill establishes the Community Infrastructure Trust Fund for contributions collected in the north-west and south-west growth centres of Sydney. Special arrangements are required for contributions collected in those areas because the Government has committed to providing $7.9 billion in infrastructure, of which $2 billion will be funded by New South Wales taxpayers. The amendments establish an independent board of trustees to be consulted in relation to the administration of the fund. The board will comprise six trustees—two from local government, two from the Department of Planning and two from Treasury, nominated by the Treasurer. Whilst the Environmental Planning and Assessment Act will set out the basis on which funds held in the Community Infrastructure Trust Fund may be expended, the Government supports the proposed amendments as a way of increasing transparency and accountability in the administration of the fund. In particular, the establishment of the board of trustees will ensure that local government has an oversight role in relation to the administration of the fund. The Government supports these amendments because they will strengthen accountability and transparency in the administration of the Community Infrastructure Trust Fund and will ensure that there is an appropriate partnership between State and local government in the delivery of infrastructure in the growth centres.

Question—That Christian Democratic Party amendments Nos 10 and 11 be agreed to—put and resolved in the affirmative.

Christian Democratic Party amendments Nos 10 and 11 agreed to.

Ms SYLVIA HALE [12.28 a.m.], by leave: I move Greens amendments Nos 79 to 81 in globo:

No. 79 Page 122, schedule 4.1. Insert after line 36:

[8] 85A Process for obtaining complying development certificates

Insert after section 85A (1):

(1A) Allocation of certifiers by council or Department

Despite any other provision of this Act, an accredited certifier must not issue a complying development certificate unless the certifier:

(a) has been allocated as the certifier for that development by the council of the area in which the development is located or by the Director-General, or

(b) is issuing the certificate on behalf of a council.

(1B) A fee may be charged for the allocation of an accredited certifier under subsection (1A).

No. 80 Page 123, schedule 4.1 [8], lines 1–3. Omit all words on those lines.

No. 81 Pages 123 and 124, schedule 4.1 [13] and [14], line 25 on page 123 to line 4 on page 124. Omit all words on those lines.

These amendments deal with private certifiers. Amendment No. 79 would require that certifiers be allocated by a council or department, which would be able to charge a fee for so doing. Amendment No. 80 removes from private certifiers the capacity to assess complying developments and amendment No. 81 deals with the appointment of principal certifying authorities.

Clearly there is widespread dissatisfaction in the community with private certifiers. There is an inherent conflict of interest in the position. They are independent operators, they are not elected and they are accountable to no-one. Ultimately their bills are paid by those who are seeking approvals. The Government maintains that it is a myth that we are giving more power to private certifiers but if we look at this in the context of the stated expectation by the Minister that the number of complying development approvals will go from 11 per cent of all approvals to 50 per cent of all approvals, clearly it suggests there will be a massive expansion of the amount of work undertaken by private certifiers. We say that at the very least rather than an individual being able to handpick his certifier, who will be paid by the person seeking approval of the complying development, the council should allocate a certifier. Presumably a council would invite people who were acting as private certifiers to register with it. They could be allocated by lot, random selection, alphabetical order, or however. It would certainly eliminate a major source of disquiet about the activities of certifiers. One has only to look at the report of the Campbell committee of inquiry and even the inquiry into Home Building Service to get example after example of shonky work that has been approved by private certifiers. Under this bill it will be left to councils to clean up the mess so I think that in all fairness councils should at least have some role in determining which certifiers are able to certify complying developments.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.32 a.m.]: The Government opposes Green's amendments Nos 79, 80 and 81 because this proposal to have a council sign off on a complying development certificate issued by a certifier would create an additional regulatory step and impose additional costs on applicants. The Building Professionals Board is better qualified than councils to assess skills, expertise and competence of accredited certifiers to carry out work. The board does this when it grants accreditation to a certifier. This proposal would not work as councils are direct competitors of private certifiers and it would lead to conflicts of interest and possible corruption risks for councils.

The bill's provisions tighten certifiers' and councils' obligation to make sure the service levy has been paid before issuing a complying development certificate. The Greens' amendment would retain the existing subjective test that is too flexible and gives certifying authorities too much discretion. The Greens' amendment would also effectively stifle private certification in this State. It would limit the choice of qualified certifying authorities to certify building work. This is because where a development involves both building and subdivision work, in general only a council would be able to act as the principal certifying authority. The Government's amendment gives consumers a greater but appropriate choice of qualified certifying authorities to certify their building where the development also involves subdivision work. For these reasons the Government opposes the proposed amendments.

Question—That Greens amendments Nos 79 to 81 be agreed to—put and resolved in the negative.

Greens amendments Nos 79 to 81 negatived.

Ms SYLVIA HALE [12.32 a.m.]: I move Greens amendment No. 82:

No. 82 Page 126, schedule 4.1 [19], proposed section 109PA (3), line 22. Insert "not" after "is".

The bill as it stands presumes there is consistency with development consent. If a private certifier seeks advice from a council before issuing a construction certificate for building work and the council does not express its dissatisfaction with the work or in fact remains silent and does not make a specific decision, rather than being deemed to refuse, which was the normal procedure until now, the council's silence will be taken to be deemed approval. I believe this is quite a disturbing amendment because a certifier may seek the advice and the paperwork may be lost, the questions raised may be so significant they cannot be dealt with in 21 days or advice may be sought over a period such as the Christmas vacation and the council may lack both time and resources. Rather than the certificate being deemed to be refused, this provision allows deemed approval to be given. I believe this is another opportunity for corruption. If there is some sort of connivance with a council official and the request for advice is lost, there is a deemed approval.

Regardless of the circumstances in which the council fails to give the advice, section 109PA(4) says that if a consent authority is given advice under this section that the design and construction of a building, part of a building or work is consistent with the relevant development consent or compliance development certificate, a construction certificate or final occupation certificate issued in reliance on that advice may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings. That says in effect it does not matter if a construction certificate or a final occupation certificate is issued on the basis of the provision of misleading information or as a result of corrupt activity, there is no way it can be called into question. The people who are then left to bear the brunt of that are the unfortunate persons whose house may be the subject of the issue of a shonky or unreliable certificate. The Greens have very serious concerns about this provision.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.38 a.m.]: The Government opposes Greens amendment No. 82 because it would lead to delays in the system. It would mean that councils had no incentive to deal with advice applications in a timely manner. This would lead to delays and costs for home renovators. When councils collect a fee for giving advice on a construction certificate they should be obliged to provide that advice within the 21-day statutory time period. For those reasons the Government opposed the proposed amendment.

Question—That Greens amendment No. 82 be agreed to—put and resolved in the negative.

Greens amendments No. 82 negatived.

Ms SYLVIA HALE [12.39 a.m.], by leave: I move Greens amendments Nos 83, 88, 89 and 90:

No. 83 Page 126, schedule 4.1 [19], proposed section 109PA (4), lines 25–35. Omit all words on those lines.

No. 88 Page 135, schedule 4.2 [6], proposed clause 154D (1), lines 21–27. Omit all words on those lines.

No. 89 Page 135, schedule 4.2 [6], proposed clause 154D (2), line 28. Omit "a final". Insert instead "an".

No. 90 Page 135, schedule 4.2 [6], proposed clause 154D. Insert after line 32:

(3) This clause does not prevent a certifying authority from issuing an interim occupation certificate merely because the development has not been completed.

The intention of Greens amendment No. 83 is to allow greater scope for councils to issue orders that work be completed satisfactorily not only when council is aware that unauthorised work is taking place or work is being undertaken in contravention of the Act, and it is not only to allow a stop work order to be issued, but also to direct that additional work be undertaken. Amendment No. 90 would not prevent a certifying authority from issuing an interim occupation certificate merely because a development has not been completed. Occasionally it is not possible to issue a final occupation certificate but the failure to comply may be of a relatively minor nature. Greens amendment No. 90 would allow that when the failure to fully complete is of only a minor nature there would be the possibility of issuing an interim occupation certificate.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.43 a.m.]: The Government opposes Greens amendments Nos 83, 88, 89 and 90 because they would render the advice-giving mechanism introduced by the bill meaningless if certifiers could not rely on advice given by council as being advice that council was required to continue to support. If council gives due consideration to advice it provides to accredited certifiers then the council should be bound to stand by that advice and not change its mind or take enforcement action against an accredited certifier who has acted in reliance of council's previous representations.

The inclusion in the bill of the provisions allowing certifiers to seek advice from councils is an additional safeguard for consumers that is not included in the current certification regime. The introduction of the requirement for a final occupation certificate to be consistent with the consent is a new safeguard and protection for the current occupiers and future purchasers of a property. The proposed amendment may prevent mum and dad homeowners from occupying their houses where they have not completed landscaping or some other part of the development that is not required for safe occupation of a building.

The Government's regulation enables greater flexibility but at the same time provides a safeguard to require certifying authorities to check consistency with the development consent and list inconsistencies on the interim occupation certificate. The amendment providing that an interim occupation certificate can be issued when development is not complete is unnecessary as the Environmental Planning and Assessment Act already makes this clear. For those reasons the Government opposes the proposed amendments.

Ms SYLVIA HALE [12.44 a.m.]: Previously I was not clear in my remarks, largely because I had lost my notes. In relation to Greens amendments Nos 88, 89 and 90, compliance with development consent is required before an occupation certificate can be issued. According to the Local Government and Shires Association, these provisions relate to one of the most important issues for councils and the community. It is a basic and fundamental expectation that the completed development comply with the development consent. If there are no checks and balances, why bother with the certification system and why bother having a principal certifying authority and an occupation certificate if a developer or a builder is able to ignore the development application, the certifying certificate or the complying development certificate and make whatever changes he or she wants, knowing that he or she can simply lodge an application for a section 96 amendment after the event?

While the retrospective section 96 provides a practical path to address genuine minor amendments, which in some cases may be well justified, the process is undoubtedly being used by many developers and builders and assisted by some certifiers. If anyone can make deliberate changes to a development and obtain a retrospective section 96 amendment after completing the work, it will totally undermine the integrity of the planning process and cause significant distress to the local community. Contrary to what most people think, the current legislation does not require a completed building to comply with the development consent other than with limited preconditions. It does not even require compliance with the Building Code of Australia prior to the issuing of an occupation certificate, other than being satisfied that the building is suitable for occupation having regard to the Building Code of Australia classification.

This is a major issue for the community and future building owners and it results in numerous complaints to the Building Professional Board. In addition, the current legislation does not contain any requirements to obtain a final occupation certificate. Therefore, many certifiers are simply issuing an interim occupation certificate and the development is never actually finalised. In many cases there are significant outstanding matters or non-compliances with the consent, which the council may or may not know about unless it receives a complaint. This is an ideal time to remedy this significant deficiency in the legislation and introduce reasonable levels of integrity and accountability into the certification process.

Question—That Greens amendments Nos 83 and 88 to 90 be agreed to—put and resolved in the negative.

Greens amendments Nos 83 and 88 to 90 negatived.

Ms SYLVIA HALE [12.48 a.m.], by leave: I move Greens amendments Nos 84 to 87 in globo:

No. 84 Page 132, schedule 4.1 [27], line 3. Omit "To cease carrying out specified building work or subdivision work". Insert instead "To cease carrying out specified building work or subdivision work or to do such other things that are specified in the order to provide adequate support for adjoining premises".

No. 85 Page 132, schedule 4.1 [28], proposed section 121CA (1), line 8. Insert ", or a certifying authority (also a relevant authority), other than an accredited certifier, that issues a direction to a person under section 109EB," after "person".

No. 86 Page 132, schedule 4.1 [28], proposed section 121CA (1) (a), line 12. Insert "or direction" after "order".

No. 87 Page 132, schedule 4.1 [28], proposed section 121CA (1) (b), line 13. Insert "or direction" after "order".

Amendment No. 84 is in relation to section 121B (1). I refer to page 132, order No. 19, column 1. After the words "subdivision work" add the words "or to do such things that are specified in the order to provide adequate support of land or adjoining premises." This amendment is intended to allow a council to give an order directing a person to carry out specified works to support an excavation or adjoining premises—for example, to provide temporary or permanent shoring up or retaining walls or to backfill an excavation. Amendment No. 85 is to enable a council to recover costs associated with all unauthorised work, including that which encompasses significant resources to investigate and resolve prior to, or without the need to, issue an order. Basically, it extends the orders that a council can make and allows councils to make directions also.

The Hon. TONY KELLY

The amendments proposed in relation to the new section 121B order will be addressed through the development of this standard condition and therefore are not necessary. The amendments to enable a compliance cost notice to be issued where a section 109EB direction is given would create an impost on home renovators, who should only have to bear costs where there is a demonstrated breach and actual enforcement action is taken. Section 109EB directions will generally be issued by principal certifying authorities who have a responsibility to monitor work on the site and ensure compliance. The cost of issuing these directions will more than likely be covered by the fee charged by the principal certifying authority. For these reasons the Government opposes the Greens amendments.

Question—That Greens amendments Nos 84 to 87 be agreed to—put and resolved in the negative.

Greens amendments Nos 84 to 87 negatived.

Ms SYLVIA HALE [12.51 a.m.]: I move Greens amendment No. 91:

No. 91 Page 140, schedule 5.1. Insert after line 7:

[2] Section 5 Objects

Insert after section 5 (a) (viii):

(ix) the reduction of greenhouse gas emissions and mitigation of the effects of climate change, and

(x) the protection and enhancement of the health and wellbeing of the community, and

The purpose of the amendment is to insert new objects into the Act. The existing objectives of the Act include encouraging the proper management of natural and artificial resources, the orderly and economic use and development of land, the provision and coordination of community and utility services, the provision of land for public purposes, the provision and coordination of community services and facilities, the protection of the environment, and the provision and maintenance of affordable housing. It is important that the Act recognise that these existing objectives need to be balanced with what should be the fundamental public interest objective of the planning system, to protect and enhance the health and wellbeing of the population.

Major planning decisions should consider questions relating to overall community health objectives with regard to, for example, promoting physical activity, reducing obesity or improving air quality. Most parties now recognise that a multifaceted response to climate change is required. The climate change amendment to the objective recognises the central role the planning system must play in that response. Greenhouse gas emissions and mitigation of the effects of climate change are central to planning questions relating to housing and building design, the location of farming, residential and employment lands, and the nature and location of transport corridors. By placing this issue within the objects of the Act, planners, developers, councils and community representatives will be encouraged to take these issues into account when considering key planning issues.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.52 a.m.]: The Government opposes Greens amendment No. 91. The inclusion of additional objects in the Environmental Planning and Assessment Act is unnecessary. The existing objects of the Act already include encouraging ecologically sustainable development, and promoting the social and economic welfare of the community and a better environment. For this reason the Government opposes the amendment.

Question—That Greens amendment No. 91 be agreed to—put and resolved in the negative.

Greens amendment No. 91 negatived.

Ms SYLVIA HALE [12.53 a.m.]: I move Greens amendment No. 92:

No. 92 Page 141, schedule 5.1. Insert after line 11:

[7] Section 148A

Insert after section 148:

148A Donations by property developers and others

(1) A property developer who:

(a) makes, or offers to make, a donation to a politician, political party or party official, or

(b) solicits another person to make, or to offer to make, a donation to a politician, political party or party official on the property developer's behalf, is guilty of an offence.

(2) A politician, political party or party official who accepts or solicits a donation from a property developer is guilty of an offence.

(3) A person (whether or not a property developer) who makes a development application or submits an expression of interest to the Minister, or to a consent authority, within 1 year after making a donation to a politician, political party or party official, is guilty of an offence.

(4) A person (whether or not a property developer) who makes a donation to a politician, political party or party official within 1 year after a development application made by the person is determined under this Act, is guilty of an offence.

(5) For the purposes of this section, a property developer means a person or body that, at the time of making, offering, soliciting another person to make or being solicited to make a donation:

(a) is involved in property development, or

(b) is associated with property development (because the person or body provides financial, legal, construction or other related services to a person or body involved in property development), or

(c) has made a development application to the Minister or to a consent authority that has not been determined, but does not include a home renovator.

(6) This section applies irrespective of the purpose of the donation.

(7) In this section:

development application includes an application for approval of a project under Part 3A, but does not include an application made by a home renovator in connection with renovations or extensions to his or her place of residence.

donation includes money, property or any other benefit.

expression of interest means an expression of interest in carrying out a development.

home renovator means an individual whose sole involvement with property development is the undertaking of renovations or extensions to the individual's place of residence.

party official means a person who holds an office in a political party.

political party means a party that is officially registered for the purposes of elections to a Parliament or a local council.

politician means:

(a) a member of Parliament, or

(b) an elected member of a local council, or

(c) a candidate for election to Parliament or a local council.

Greens amendment No. 92 seeks to restore a measure of community and council control over decision making, increase accountability, and remove conflicts of interest by banning donations from property developers to political parties, officials and candidates. The bill makes it an offence for a political party or candidate to accept a donation from a property developer. It also makes it an offence for anyone involved in property development to make a donation to a political party or candidate. Further, it makes it an offence for any person who has made a donation to a political party or candidate to put forward a development application, tender, or expression of interest in development work for 12 months after making the donation, and it will be an offence to make a donation for 12 months after a development application process is complete.

The purpose of these amendments is, in one simple step, to remove the vast majority of conflicts of interest that have brought the State's planning system into such disrepute. The New South Wales Greens have been campaigning on the issue of political donations by the property development industry and the corrupting effect of these donations on the State's planning system for more than a decade. Since before being elected to this Parliament I have argued that developer donations take away the rights of the community, by elevating the interests of the donor over the interests of the community, thereby reducing community and council control over development decisions. There is no doubt that developer donations have this effect. Independent Commission Against Corruption inquiries into the Tweed, Liverpool, Rockdale, Strathfield and, most recently, Wollongong councils have provided incontrovertible evidence that political donations have affected decisions relating to developments.

In 2003 my colleague Ms Lee Rhiannon introduced in this House a similar private member's bill to ban developer donations. On that occasion members from Labor and the Coalition parties voted against the bill. The Greens, the Christian Democratic Party members, and the rest of the then crossbench voted in favour of it. I ask members: Five years later, are the citizens of New South Wales better or worse off as a result of the 2003 bill being defeated? It is absolutely clear that there is enormous cynicism about the impact of political donations. I believe this was summarised by Malcolm Knox in the Sydney Morning Herald of 1 March 2008 as follows:

^th

I will not continue at any length, although one obviously could. I believe it is perfectly clear that donations are the undoing of any system that purports to plan appropriately and properly for this State.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [12.56 a.m.]: The Government opposes Greens amendment No. 92. The Premier has made clear commitments to introducing holistic reforms to campaign donation laws in New South Wales. These amendments were previously proposed by the Greens in their Environmental Planning and Assessment Amendment (Restoration of Community Participation) Bill 2008, which has been referred to an inquiry. Greens amendment No. 92 proposes changes that would make it an offence for a property developer to make or offer a donation to an elected official or political party. The definition of "property developer" is very wide and would include mums and dads who want to renovate their holiday home. It also extends to people associated with property developers, including lawyers, accountants, contractors and financial firms who do work for so-called property developers.

The Greens amendment would create an oppressive system that would make it a criminal offence for any person, including a home renovator, to lodge a development application within one year of making a donation, or for any person to make a donation within one year of a development application being determined. The Greens' proposed rule does not distinguish between the size of donations. So, potentially, a person who makes a $10 donation and who also has been involved in lodging a development application within 12 months could be subject to a $1.1 million fine under the Act. The Government has made a firm commitment to introducing donations reforms which will provide strong controls. The Government opposes these unworkable and inequitable amendments moved by the Greens.

Question—That Greens amendment No. 92 be agreed to—put and resolved in the negative.

Greens amendment No. 92 negatived.

Mr IAN COHEN [12.58 a.m.], by leave: I move Greens amendments Nos 93 and 94 in globo:

No. 93 Page 151, schedule 5.2, lines 14–28. Omit all words on those lines.

No. 94 Page 152, schedule 5.3, lines 8–19. Omit all words on those lines.

Greens amendment No. 93 seeks to remove the provision in the bill that cancels the need for the relevant Minister administering the Coastal Protection Act 1979 to concur with any proposed development under the Environmental Planning and Assessment Act. This is an unnecessary decentralisation of power to the planning Minister, who may not have the capacity or environmental credentials to properly evaluate coastal zone impacts and would benefit from the expertise of the officers of the environment Minister. Greens amendment No. 94 seeks to remove the provision in the bill that cancels the need for the relevant Minister administering the Coastal Protection Regulation 2004. Again, it is an unnecessary centralisation of ministerial power. I commend Greens amendments Nos 93 and 94 to the Committee.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [1.00 a.m.]: The Government opposes Greens amendments Nos 93 and 94 because it has already indicated the importance of removing statutory concurrence roles where they are no longer required. The bill removes the concurrence role where development will have a minimal environmental impact, where the development has been assessed under part 4 of the Act or where the development is carried out in accordance with a coastal zone management plan under the Coastal Protection Act. The Government believes the provisions in the bill will ensure the continued protection of the coastal environment of the State for the benefit of both present and future generations.

It is necessary to set the record straight regarding comments Ms Sylvia Hale made earlier. She referred to an article by Elizabeth Farrelly in which she noted that Julie Bindon, the head of the Planning Institute of Australia and highly respected planning professional, worked for Stockland on Sandon Point. Ms Hale failed to point out that Julie Bindon clarified that this comment was untrue, unfair and misleading in her letter to the editor on Saturday, 14 June. The letter states:

The comments made by Ms Hale are an atrocious abuse of her parliamentary privilege. She blatantly smeared a highly professional and well-respected planning professional's reputation. She should get her facts straight and apologise on the record. Similar sentiments are expressed about Deborah Dearing, who serves as President of the New South Wales chapter of the Royal Australian Institute of Architects and who is also the head of Strategic Urban Planning at Stockland. It is simply offensive for Ms Hale to suggest that Dr Dearing cannot separate her roles and serve the interests of the peak professional body that she leads.

Ms SYLVIA HALE [1.06 a.m.]: I believe it is the Minister who should set the record straight. At no stage did I say that Julie Bindon worked for Stockland. I did suggest that she undertook work for a major developer. I spoke specifically about Dr Deborah Dearing and Sandon Point. I referred to the meeting between her and the Minister for Planning and the deal that Minister Sartor forced on Wollongong City Council, which cost the residents of Wollongong dearly. However, it did save Stockland a substantial amount of money. I did identify Dr Dearing as the manager of strategic planning at Stockland. At no stage—and I invite the Minister to check the record tomorrow in Hansard—did I say that Julie Bindon worked for Stockland.

Question—That Greens amendments Nos 93 and 94 be agreed to—put and resolved in the negative.

Greens amendments Nos 93 and 94 negatived.

Schedules 1 to 5 agreed to.

Title agreed to.

The CHAIR (The Hon. Amanda Fazio): Order! The Committee will deal next with the Building Professionals Amendment Bill 2008. I propose to deal with the bill as a whole.

Question—That the bill be adopted as read—put and resolved in the affirmative.

The CHAIR (The Hon. Amanda Fazio): Order! The Committee will deal next with the Strata Management Legislation Amendment Bill 2008.

Clauses 1 to 5 agreed to.

Ms SYLVIA HALE [10.45 p.m.], by leave: I move Greens amendments Nos 1 and 2 in globo:

No. 1 Page 3, schedule 1. Insert after line 3:

[1] Section 27 How is a strata managing agent appointed?

Insert after section 27 (1):

(1A) Unless it expires or otherwise ceases to have effect earlier, the instrument of appointment of a strata managing agent (including any additional term under any option to renew it) expires:

(a) in the case of an instrument (other than an instrument referred to in paragraph (b)) in respect of a strata scheme that was established after the commencement of this subsection—2 years after the establishment of that scheme, or

(b) in the case of an instrument that was executed by the original owner—at the conclusion of the first annual general meeting of the owners corporation, or

(c) in any other case—one year after the instrument commenced to authorise the strata managing agent to act under it.

(1B) Subsection (1A) does not prevent an owners corporation from taking any of the following actions if authorised to take that action by a resolution at a general meeting of the owners corporation:

(a) renewing an instrument of appointment of a strata managing agent that is due to expire by operation of subsection (1A),

(b) executing a new instrument of appointment in respect of the same person who was the strata managing agent under an instrument that has expired by the operation of subsection (1A).

However, any such renewed instrument or new instrument expires in accordance with subsection (1A).

No. 2 Page 3, schedule 1. Insert before line 4:

[2] Section 27 How is a strata managing agent appointed?

Omit section 27 (3). Insert instead:

(3) The functions of a strata managing agent of a strata scheme may be transferred to another person by the strata managing agent, but only with the approval of the owners corporation for the strata scheme. A person to whom those functions are transferred is taken to be appointed as a strata managing agent of the strata scheme concerned under the same instrument of appointment that appointed the strata managing agent from whom those functions are transferred.

(4) The approval of an owners corporation to the transfer of functions of a strata managing agent may not be given more than 3 months before the proposed transfer of functions is to take effect.

(5) A term of a contract or an agreement is of no effect to the extent that it purports to remove or limit the power of an owners corporation to approve of the person to whom the functions of strata managing agent are transferred.

Amendment No. 1 inserts new section 27 (1A), which is designed to ensure that strata managing agents' contracts are for a maximum of two years for a new strata scheme or one year thereafter. Notwithstanding this, a decision of an annual general meeting can renew a contract. At present, building management contracts are for a maximum of 10 years with a 10-year option to renew. Often these contracts are signed within the first few months of a building's life when the majority of units may not have been sold and a huge proportion of new owners have no idea what they should and could be doing. Yet, they and all subsequent owners are tied to 10-year contracts that are rarely good for the building or good value for the owners.

There is absolutely no justification for 10-year contracts for either building managers or strata managers. In fact, it is so counterproductive that it beggars belief that it is allowed at all. This amendment, if passed, will mean that all contracts are for a maximum of two years for a new strata scheme, and then one year—as is the case in the United States of America—with an option to renew. Good managers will always be rewarded with new contracts. Given that the object of this bill is to improve the situation for owners and strata schemes, the Greens amendments will add to the positive aspects of the bill in respect of owners' control.

Greens amendment No. 2 deals with the transfer of a strata management contract. Previous changes to the strata laws were based on the sale of strata management contracts without owners corporation approval. Strata managers have exploited a loophole whereby each contract carries a clause giving prior permission for such a sale to take place at some point in the future. Greens amendment No. 2 proposes that contracts may not be sold to other parties without owners corporation approval at the time of sale or, as we put it in this amendment, not more than three months before the proposed sale. Any clause in a contract that pre-empts approval such as those that exist in the current Institute of Strata Titles Managers basic contract would be invalid.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [1.10 a.m.]: The Government opposes Greens amendments Nos 1 and 2. Honourable members have already heard that the changes proposed in the Strata Management Legislation Amendment Bill 2008 have been subject to a thorough and transparent review process involving extensive consultation. Of the many submissions received from interested parties, only one made any reference to possible limits to the duration of strata agents' agreements, or to further limiting the maximum term of caretaker agreements.

Under the existing provisions of the Strata Schemes Management Act owners corporations can appoint strata management agents for whatever period they consider appropriate. Furthermore, the owners corporations can terminate any such appointments subject to whatever contractual obligations exist. Owners corporations already have a significant level of control and flexibility regarding the terms of agreements for strata managing agents. The amendments to the bill proposed by the Greens to introduce restrictions on agency agreements serve no clear purpose and are totally unnecessary.

The proposed changes would limit the autonomy of owners corporations and reduce the flexibility of existing provisions for the appointment of strata managers. The changes also could add an additional red tape burden that would be a distinct disadvantage to the operation of owners corporations. Under the current legislation there is nothing to prevent owners corporations from choosing to limit strata managing agents' contracts to three years, two years or even one year's duration. Furthermore, I understand that the standard contract term chosen by owners corporations for strata managing agencies generally is three years.

My colleague the member for Canterbury and Minister for Fair Trading advised me that this is not an issue about which the Office of Fair Trading receives complaints. It is not the practice for industry to enter into long-term strata agency agreements. The terms of strata agency agreements are already totally regulated under the Property, Stock and Business Agents Act 2002. Legislative requirements apply to agreements for all categories of property agent. There is no justification for singling out strata agents for different treatment, especially given the lack of consumer complaints.

The amendments are also inconsistent with the requirements of the Property, Stock and Business Agents Act. With conflicting requirements this can only make compliance more difficult for industry and cause confusion for consumers. The amendments relating to the transfer of an agent's appointment to another agent are of particular concern, as they would place in doubt the legal right of agents to be paid for the work and be reimbursed for expenses that they incurred on behalf of their owners. I add that the issue has not been raised by the current review of the Property, Stock and Business Agents Act. Only one of the more than 400 submissions to the planning reform discussion paper suggested limits on agency agreements.

Question—That Greens amendments Nos 1 and 2 be agreed to—put and resolved in the negative.

Greens amendments Nos 1 and 2 negatived.

Ms SYLVIA HALE

No. 3 Page 3, schedule 1. Insert after line 10:

[2] Section 40B How is a caretaker appointed?

Omit section 40B (2). Insert instead:

(2) Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires:

(a) in the case of an agreement (other than an agreement referred to in paragraph (b)) in respect of a strata scheme that was established after the substitution of this subsection by the Strata Management Legislation Amendment Act 2008—2 years after the establishment of that scheme, or

(b) in the case of an agreement that was executed by the original owner—at the conclusion of the first annual general meeting of the owners corporation, or

(c) in any other case—one year after the agreement commenced to authorise the caretaker to act under it.

(2A) Subsection (2) does not prevent an owners corporation from taking any of the following actions if authorised to take that action by a resolution at a general meeting of the owners corporation:

(a) renewing a caretaker agreement that is due to expire by operation of subsection (2),

(b) entering into a new caretaker agreement with the same person who was a party to a caretaker agreement that has expired by the operation of subsection (2).

However, any such renewed caretaker agreement or new caretaker agreement expires in accordance with subsection (2).

Greens amendment No. 3 replaces current section 40B (2) to ensure that, as in Greens amendment No. 1, the same provisions apply to the longevity of caretaker agreements as apply to strata management agreements. It specifies that caretaker contracts will be for a maximum of two years for a new strata scheme and one year thereafter. Notwithstanding that, an annual general meeting can renew a contract. Again, there is no reason for caretakers to lock agents into 10-year contracts.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [1.14 a.m.]: The current Act limits caretaker agreements to a maximum of 10 years duration. This limit was introduced in 2003 after an extensive review and consultation. It reflects a carefully negotiated and balanced position that takes the needs of both parties to the contract into account. The 2003 amendments also gave owners the right to apply to the Consumer, Trader and Tenancy Tribunal about unsatisfactory performance, unfair charges or harsh, oppressive or unconscionable or unreasonable contract terms.

The tribunal can terminate a contract, order payment of compensation, or vary or declare void any terms of the contract. Owners are already well protected by the current legislation. Any further amendment should be made only following proper review and consultation. Again, only one of the 400 submissions to the discussion paper suggested limits on caretaker agreements. The amendment is simply not justified. The amendment also will impose significant additional costs on owners corporations by limiting them to approving the transfer of a caretaker agreement no more than three months before transfer is to occur.

Instead of being able to consider the matter at an annual general meeting if it is more than three months before the transfer is to occur, the owners will have to call for an extraordinary general meeting closer to the date of the transfer. Calling a general meeting can cost many thousands of dollars, especially in larger schemes. The amendment seeks to reduce owners autonomy and to oppose unnecessary costs. The amendment is opposed.

Question—That Greens amendment No. 3 be agreed to—put and resolved in the negative.

Greens amendment No. 3 negatived.

Ms SYLVIA HALE [1.15 a.m.]: I move Greens amendment No. 4:

No. 4 Page 3, schedule 1. Insert before line 11:

[2] Section 40B How is a caretaker appointed?

Insert after section 40B (4):

(5) The approval of an owners corporation to the transfer of functions of a caretaker may not be given more than 3 months before the proposed transfer of functions is to take effect.

(6) A term of a contract or an agreement is of no effect to the extent that it purports to remove or limit the power of an owners corporation to approve of the person to whom the functions of caretaker are transferred.

To some extent Greens amendment No. 4 mirrors amendment No. 2 and deals with the transfer of a contract, in this case, to a caretaker's agreement. The Greens amendment proposes that caretaker contracts may not be sold to other parties without owners corporation approval at the time of sale or, as we said earlier, not more than three months before the proposed sale. Any clause in a contract that pre-empts approval would be invalid.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [1.16 a.m.]: The Government opposes Greens amendment No. 4 for the reasons already outlined.

Question—That Greens amendment No. 4 be agreed to—put and resolved in the negative.

Greens amendment No. 4 negatived.

Ms SYLVIA HALE [1.17 a.m.]: I move Greens amendment No. 5:

No. 5 Page 3, schedule 1 [3]. Insert after line 27:

(7AD) An instrument appointing a proxy to exercise an owner's voting rights in respect of a lot is ineffective if it is executed within the period of one month after the title to the lot is transferred to the owner.

Basically, amendment No. 5 is a cooling off clause so that a new owner may not give away his or her vote to anyone else within the first month of becoming an owner in a strata scheme. At the height of the apartment sales boom, potential customers were being railroaded into signing contracts to buy off the plan, often with as little as 20 minutes allowed to peruse the contracts. Although there is little likelihood of that happening again at present, the market could go crazy at any time in the future and there is no place for these hard-sell tactics when we are dealing with people's homes and life savings.

The amendment therefore proposes that there be a mandatory one-month cooling off period after the title of the lot is transferred to a new owner, meaning that potential purchasers or new owners cannot sign away this right even if they wish to do so. After a month they can fill in the necessary paperwork on reflection if they wish to give their proxy vote to someone else. Notwithstanding the Government's changes to proxy voting, the cooling off period strengthens the Government's proposed amendments just in case a developer should put pressure on a new owner, but not necessarily by using a contract to do so.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [1.17 a.m.]: This amendment proposes to prevent a person who buys a unit in a strata scheme from being able to appoint someone as a proxy to represent him or her in owners corporation meetings for a period of one month after the purchase. This is an outrageous attempt to curtail new strata owners rights and their ability to participate in the management of their scheme if they are not able to attend meetings in person.

The Greens' reason for this anti-consumer provision is unfathomable. Many owners are investors who do not live near their strata scheme. The only way that they can participate in the management of their scheme is by appointing a proxy to vote on their behalf. Currently, the Act contains significant protection for owners in relation to proxies. It limits their length, allows an owner to cancel a proxy appointment at any time, and the owner can override a proxy by attending a meeting and voting in person. The bill further protects owners to prevent the misuse of proxies. The Greens amendment is simply not needed.

Question—That Greens amendment No. 5 be agreed to—put and resolved in the negative.

Greens amendment No. 5 negatived.

Ms SYLVIA HALE

No. 6 Page 5, schedule 1 [7]. Insert after line 24:

25 Limitations on appointments of existing strata managing agents

(1) Section 27 (1A) (as inserted by the amending Act) extends to an instrument of appointment of a strata managing agent executed before the commencement of that subsection and still in force at that commencement.

(2) In applying section 27 (1A) to instruments of appointment referred to in subclause (1), a reference in section 27 (1A) (c) to one year after the agreement commenced to authorise the strata managing agent to act under it is to be read as a reference to one year after the insertion of section 27 (1A) by the amending Act.

No. 7 Page 5, schedule 1 [7]. Insert before line 25:

25 Transfer of functions under existing strata managing agent agreements

Section 27 (5) (as inserted by the amending Act) extends to a contract or an agreement entered into before the commencement of that subsection and in force at that commencement, but does not affect any transfer of functions of a strata managing agent that took place pursuant to that contract or agreement before that commencement.

No. 8 Page 5, schedule 1 [7], proposed clause 25. Insert after line 25:

(1) Clause 11 (7AD) of schedule 2 (as inserted by the amending Act) does not apply to any proxy given before the commencement of that subclause or to the renewal or extension of the term of any such proxy. This subclause has effect despite subclauses (2) and (3).

No. 9 Page 5, schedule 1 [7]. Insert after line 34:

26 Limitations on existing caretaker agreements

(1) Section 40B (2) extends to a caretaker agreement entered into before the substitution and still in force at the substitution.

(2) In applying section 40B (2) as substituted to caretaker agreements referred to in subclause (1), a reference in section 40B (2) (c) to one year after the agreement commenced to authorise the caretaker to act under it is to be read as a reference to 1 year after the substitution.

(3) In this clause, substitution means the substitution of section 40B (2) by the amending Act.

No. 10 Page 6, schedule 1 [7]. Insert before line 1:

26 Transfer of functions under existing caretaker agreements

Section 40B (6) (as inserted by the amending Act) extends to a contract or an agreement entered into before the commencement of that subsection and in force at that commencement, but does not affect any transfer of functions of a caretaker that took place pursuant to that contract or agreement before that commencement.

Amendment No. 6 creates retrospectivity to the appointment of strata managements where they were appointed for a specified term prior to the enactment of this provision. So, even if a strata manager had a 10-year contract, the contract would come up for review one year after the insertion of proposed section 27 (1A). Amendment No. 7 provides that "Section 27 (5) (as inserted by the amending Act) extends to a contract or an agreement entered into before the commencement of that subsection and in force at that commencement, but does not affect any transfer of functions of a strata managing agent that took place pursuant to that contract or agreement before that commencement." So, it will apply to transfers in the future, not in the past.

Amendment No. 8 relates to a cooling off period for the giving of proxies. The arrangement proposed by the Greens for a cooling-off period "does not apply to any proxy given before the commencement of that subclause or to the renewal or extension of the term of any such proxy. This subclause has effect despite subclauses (2) and (3)." So the cooling-off period would apply to new strata scheme owners only. In a similar manner to amendment No. 6, amendment No. 9 provides that "Section 40B (2) extends to a caretaker agreement entered into before the substitution and still in force at the substitution." So, even if a caretaker has a 10-year contract, that contract will be up for review one year after commencement.

Finally, in a similar manner to amendment No. 7, amendment No. 10 provides that section 40B (6), which deals with the transfer of functions of a caretaker, "extends to a contract or an agreement entered into before the commencement of that subsection and in force at that commencement, but does not affect any transfer of functions of a caretaker that took place pursuant to that contract or agreement before that commencement." So, it will apply to future transfers, not to the past.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, Acting Minister for the Central Coast, and Vice-President of the Executive Council) [1.21 a.m.]: Greens amendments Nos 6, 7, 8, 9 and 10 are all transitional provisions related to previous amendments that have been defeated. They are opposed for the same reasons I advanced in the consideration of earlier amendments.

Question—That Greens amendments Nos 6 to 10 be agreed to—put and resolved in the negative.

Greens amendments Nos 6 to 10 negatived.Greens amendments Nos 6 to 10 negatived.

Schedule 1 agreed to.

Schedule 2 agreed to.

Title agreed to.

Environmental Planning and Assessment Amendment Bill reported from Committee with amendments, and cognate bills reported without amendment.

Adoption of Report

Motion by the Hon. Tony Kelly agreed to:Motion by the Hon. Tony Kelly agreed to:

That the report be adopted.

Report adopted.

Third Reading

Dr JOHN KAYE: I ask, in accordance with Standing Order 139 (2), that questions on the third reading of the bills be put separately.

Question—That the Environmental Planning and Assessment Amendment Bill be now read a third time—put.

The House divided.

Ayes, 18

Mr Brown
Mr Catanzariti
Mr Costa
Mr Della Bosca
Ms Fazio
Ms Griffin
Mr Hatzistergos

Mr Kelly
Reverend Nile
Ms Robertson
Mr Roozendaal
Mr Smith
Mr Tsang
Ms Voltz

Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Veitch

Noes, 17

Mr Ajaka
Mr Clarke
Mr Cohen
Ms Ficarra
Miss Gardiner
Mr Gay

Ms Hale
Dr Kaye
Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes

Ms Parker
Mr Pearce
Ms Rhiannon
Tellers,
Mr Harwin
Mrs Pavey

Pairs

Mr Macdonald	Mr Colless
Mr Obeid	Ms Cusack
Ms Sharpe	Mr Gallacher

Question resolved in the affirmative.

Motion agreed to.

Question—That the Building Professionals Amendment Bill 2008 be now read a third time—put.

Division called for and Standing Order 114 (4) applied.

The House divided.

Ayes, 22

Mr Brown
Mr Catanzariti
Mr Cohen
Mr Costa
Mr Della Bosca
Ms Fazio
Ms Griffin
Ms Hale

Mr Hatzistergos
Dr Kaye
Mr Kelly
Reverend Nile
Ms Rhiannon
Ms Robertson
Mr Roozendaal
Mr Smith

Mr Tsang
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Veitch

Noes, 13

Mr Ajaka
Mr Clarke
Ms Ficarra
Miss Gardiner
Mr Gay

Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Ms Parker

Mr Pearce

Tellers,
Mr Harwin
Mrs Pavey

Pairs

Mr Macdonald	Mr Colless
Mr Obeid	Ms Cusack
Ms Sharpe	Mr Gallacher

Question resolved in the affirmative.

Motion agreed to.

Question—That the Strata Management Legislation Amendment Bill 2008 be now read a third time—put.

Division called for and Standing Order 114 (4) applied.

The House divided.

Ayes, 22

Mr Brown
Mr Catanzariti
Mr Cohen
Mr Costa
Mr Della Bosca
Ms Fazio
Ms Griffin
Ms Hale

Mr Hatzistergos
Dr Kaye
Mr Kelly
Reverend Nile
Ms Rhiannon
Ms Robertson
Mr Roozendaal
Mr Smith

Mr Tsang
Ms Voltz
Mr West
Ms Westwood

Tellers,
Mr Donnelly
Mr Veitch

Noes, 13

Mr Ajaka
Mr Clarke
Ms Ficarra
Miss Gardiner
Mr Gay

Mr Khan
Mr Lynn
Mr Mason-Cox
Reverend Dr Moyes
Ms Parker

Mr Pearce

Tellers,
Mr Harwin
Mrs Pavey

Pairs

Mr Macdonald	Mr Colless
Mr Obeid	Ms Cusack
Ms Sharpe	Mr Gallacher

Question resolved in the affirmative.

Motion agreed to.

Bills read a third time.

The Environmental Planning and Assessment Amendment Bill 2008 was returned to the Legislative Assembly with amendments, and the cognate bills were returned to the Legislative Assembly without amendment.

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Environmental Planning and Assessment Amendment Bill 2008
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