Can Minister Hazzard save the Planning Bill with Amendments?

Can Minister Hazzard save the Planning Bill with Amendments?

By James Ryan

NSW Planning Minister Brad Hazzard has placed a diabolically bad Planning Bill on public exhibition which has naturally and predictably provoked a community outcry.

Now the question is this: Can the Minister save the Bill by offering some amendments?

You should answer that question in the same way you answer this question:

If you were purchasing a house and had received a building report which said the building was unsound, would you still proceed with the purchase if the vendor promised to give the house a new coat of paint?

If you answered yes to that question, then you should support Brad Hazzard’s amendments to the Planning Bill.  Most of us would, of course, answer no, because we would not be fooled by the new paint.

What are Hazzard’s proposed amendments?

Despite the Government championing the amendments in a media release and various claims that Local Government NSW and the Liberal Backbench are happy with them, little is known of the amendments.

What we do know is this:

Minister Hazzard’s media release[1] promises that Code Assessable development will only apply in nominated growth areas  ‘like North West and South West train lines or areas nominated by Councils.’

Code Assessable Development doesn’t only removes the community’s right to have a say in development. It also removes the right of the local Council or planning authority to make a merits-based assessment of a particular development, such as the basic consideration of whether a particular development is suited to a particular site – a bottle shop near a school for example.

The first thing we  should note is that any proposal which seeks to impose a regime in which residents in some parts of NSW are prevented from having a say, while residents in other areas do have a say, is undemocratic and unacceptable.

It should also be noted that while the term areas  ‘like North West and South West train lines or areas nominated by Councils’ is unclear, the Governments own North West Rail Link Corridor Strategy[2] says:

The North West Rail Link is a new 23 km rail link from Epping to Cudgegong Road at Rouse Hill. Eight new train stations will be built along the link at Cherrybrook, Castle Hill, Showground, Norwest, Bella Vista, Kellyville, Rouse Hill and Cudgegong Road.  The area surrounding these new train stations is predicted to provide 27,400 new homes

 

So far there is not a published South West Rail Link Corridor Strategy but we can expect a similar strategy to that of the North West.

The second thing we should note is that Local Government NSW (LGNSW) has publicly stated that the Minister has informed them that Code Assessable development WILL apply to Urban Activation areas[3].

There are eight (8) Urban Activation areas already announced. These are:

 

North Ryde Station

Epping Town Centre

Herring Road, Macquarie Park

Randwick

Anzac Parade South

Carter Street, Lidcombe

Wentworth Point

Mascot Station

 

As you can see the list of areas where Code Assessable Development will apply is beginning to get longer.

In addition to these areas I think it is reasonable to assume  that the Government would have the same intention for other areas already singled as growth areas in the Metropolitan Growth Plan and other documents(and I invite the Minister to refute this if it is not the case).

Areas such as:

The Central to Eveleigh corridor – a 3 km corridor stretching from Goulburn Street in the City to MacDonald Town Station in Newtown.

Centres identified for growth in the Metropolitan Growth Plan/Strategy such as:

Burwood Major Centre, Bondi Junction Major Centre, Chatswood Major Centre,  Green Square Planned Major Centre, Macquarie Park Specialised Precinct, Port Botany (and environs) Specialised Precinct, Randwick Health and Education Specialised Precinct, Rhoades Specialised Precinct, Sydney Airport (and environs_ Specialised Precinct, St Leonards Specialised Precinct , Anzac Parade Corridor, Parramatta Road Corridor and Sydney Harbour.

Councils declaring their own Code assessment areas

The Minister is proposing to let Councils declare their own areas in which Code Assessable Development. What would this power result in for a Council which was making unbalanced decisions in favour of developers? I am thinking here of Councils which followed the path of Wollongong in 2007/8 , or Tweed Council in 2005).  Councils which have been shown by Government inquiries to have breached the communities trust if  by favouring developers interested in an unbalanced way. If these Councils had the power to declare Code Assessable Development areas and ALSO to say what the Code required to ensure no further assessment of development was required it could well be a disaster for the community and the environment.

We need to ensure that rogue Councils (and rogue Ministers) do not have this sort of discretionary power. Sharing power between Councils and the Minister since the 1979 Act came into force has proven to be an important check and balance in the planning system.

Land Zoning to remain.

Minister Hazzard announced that the full set of land zonings would remain. This is indeed an improvement.

Appeal rights and heritage protections

The Minister also announced that appeal rights and heritage protections will continue. The trouble is this has been previously promised. It was not until a formal complaint was lodged and an investigation conducted by the Departments own internal legal team that it was admitted that the Department had been misleading the people of NSW.

The Department and the Minister’s credibility is now such that we simply cannot believe statements they make without provision of the exact detail.

Finally what about that unsound house analogy?

The Bill is unsound for three broad reasons.

Firstly because it promises robust strategic planning upfront but fails to deliver by allowing the Minister and Director General wide discretion to override plans.

Secondly because the Bill fails to meet community expectations that planning legislation should have the good of the whole community at heart. This legislation is irretrievably focused on economic growth to the exclusion of community and environmental wellbeing.

Finally the Bill creates an unacceptable corruption risk.

If you want to know just how unsound this legislation is, how lacking in transparency, and how much it increases the risk of corruption in NSW, you should read the ICAC submissions on both the Greens Paper (September 2012) and the White Paper (June 2013).

A great addition to the ICAC submission is that of the NSW Law Society which contains a long list of discretionary Ministerial powers.  Ministerial discretion usually means that arbitrary decisions can be made: and arbitrariness is the antithesis of good planning which requires a commitment to strategic decisions making, equality of treatment of all stakeholders, and certainty for developers and community alike.

Don’t buy the house!

James Ryan is a member of the Greens, a Councillor on Cessnock City and Council and a solicitor.


[1] Media Release, Brad Hazzard MP, Minister Listens to community and councils on planning bill, 19 September 2013

[2] Department of Planning and Infrastucture website, North West Rail Link Corridor Strategy, accessed 27.9.13

[3] Media Release, LGNSW, 18 September 2013

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