Minns planning to overhaul planning laws? – Page 2 – FOKE

Legislative Council Hansard – 26 November 2013

PLANNING BILL 2013, PLANNING ADMINISTRATION BILL 2013

Second Reading, Debate resumed from 21 November 2013.

The Hon. SHAOQUETT MOSELMANE [2.43 p.m.]: I speak on the Planning Bill 2013 and its cognate bill, the Planning Administration Bill 2013. With my Opposition colleagues, I oppose this bill because it does not do what the Government said it would. In opposition, Barry O’Farrell promised to rewrite planning laws in New South Wales for the better. He pledged to restore community confidence in land use planning by returning control to local government and consulting with local communities. He promised to implement a consistent, transparent and consultative planning regime. He promised to give local government the major role in land use planning and development assessment. Most importantly, he promised to restore public confidence in the planning system. This bill has been in the mill for over 2½ years, since the Liberal-Nationals Coalition was elected. The Government, to its credit, and as it should, initiated a review of the Environmental Planning and Assessment Act, which led to a green paper, a subsequent white paper and now this bill.

I do not want to say that this bill is a shambles, although it is in the eyes of many. I do not believe individuals can easily understand a bill that has been in the making for 2½ years. However, at the end of the day, the people have made known their views loudly against it. I am sure the Minister had good intentions, but given the degree of concern expressed by those in the know, there are issues that need to be addressed. For that reason, this bill should not be pushed through without the necessary amendments that would give it a semblance of balance between conflicting interests. Unfortunately, on major areas of concern the bill does not achieve what was promised. It does not achieve proper community consultation and transparency, and some elements of it are ill-conceived, failing to incorporate environmental protections and to address the need for ecologically sustainable developments. These shortfalls have threatened to make the bill unworkable.

The bill seeks to give statutory weight to State government plans over local government. It seeks to change the timing of community involvement in planning decisions; remove many opportunities for local communities to discuss the environmental and social impacts of new development, in particular code assessable development; provide a greater role for the State Government to arbitrarily intervene in the development assessment process; and remove appeal rights to certain developments. The bill as it currently stands does not meet the criteria the Government set itself in opposition. It certainly is not consistent with the Government’s current rhetoric of community engagement and consultation. The bill will not allow greater community involvement in decisions that impact on them.

Indeed, community involvement will be curtailed and appeal rights restricted. The bill does not provide any greater transparency of decision-making. When the New South Wales Liberal and The Nationals parties were elected they talked the talk and made a huge song and dance about planning, particularly in relation to part 3A. The Coalition spoke about reforming the system, giving local communities a real say, and curtailing the power of the Minister over planning decisions and giving that power back to local communities. On a number of websites, particularly www.startthechange.com.au/plans-to-give-back-to-communities-the-NSW-Liberals-2009-10, the Liberal-Nationals said:

The NSW Liberals & Nationals will rewrite the State’s planning laws.

We will scrap “Part 3A”—one of the wide-ranging powers NSW Labor has given its Planning Minister to override local communities and a factor that ICAC noted had contributed to corruption risks in the planning process. The NSW Liberals-Nationals will commence an overhaul of the planning system soon after March 2011.

We will remove the politics from planning decisions. Our review will:

ensure our planning system centres on merit and the public interest, and re-empowers local communities on local planning issues;
create a system that enjoys public support—with a state government that respects people;
create a system that is modern, takes into account sustainability, gives certainty to investors and makes NSW competitive again, including a reserve power for genuinely state significant developments;
deliver certainty about planning rules and decision making processes that are made transparently and in a timely way …

What has been achieved 2½ years later? The Government has replaced part 3A with what is called State significant development [SSD]. It must be noted that this power of the State in fact now is in the hands of the Minister, not local councils or the local community. State significant development puts greater power and concentrates authority in the hands of the Minister and his department to the detriment of local government bodies and communities. The State significant development processes have a much lower standard of assessment and weak exhibition requirements and strip from the community and local government authorities many appeal rights that were available under previous planning laws. The lack of consultation on many areas in the bill, including the strategic plans, highlights the significant concerns expressed by a large number of people, judging by the volume of emails the Opposition has received.

It appears strategic plans will fundamentally drive the overall developments that take place in any one city, council or regional area. If people are shut out of the planning process at the strategic planning level, the public are denied the opportunity to participate in a fundamental process, the end result of which could rip a community apart. In reality, the State significant development provision gives excessive powers to the Minister and his department from the exhibition period to the final decision-making process. Local councils will not know what is going on and local communities will run blind having no access to information, no opportunity to lodge submissions, no say and no role. Power will be concentrated in the hands of the Minister, and that power is enormous and extremely dangerous.

The Environmental Planning and Assessment Act is more than 25 years old, so it needs to be amended to reflect changes in our society and in community expectations. It also needs to be amended because governments over those 25 years have amended the original bill to such an extent that the community has lost confidence in it. However, if you are going to do something, you may as well do it properly. This is the opportunity to get it right; if we do not, then amendment after amendment will come before us and this Government will have squandered an opportunity to present a working planning law for many generations to come. Each generation has only one chance to redesign the planning system for the State, so we must get it right.

A good planning system balances the expectations of the community with the needs of the environment and our need to facilitate economic prosperity. The bill does not deliver that balance. Our 1979 Act got the balance right. The Environmental Planning and Assessment Act 1979 was landmark legislation that integrated social, economic and environmental considerations into one piece of legislation and one planning system. It strove to deliver an explicit balance between economic growth, environmental limits and community expectations, and for a long time it got that balance right. The 1979 Act, clearly, is no longer workable and needs to be changed, but New South Wales cannot introduce a substandard planning system to replace another substandard one.

This Government started the process well. It began with good intentions, or so it seemed, and appeared to be taking this seriously. However, the result does not match the rhetoric. The power it now imparts to the Minister, his departments and outside bodies skews any balance between good development, proper assessment, affordable housing, environmental protections, ecologically sustainable developments and challenges between community and business rights. Like many members of this Chamber, I have been contacted by the public—individuals, community groups, local government bodies and businesses—who are concerned about the Planning Bill, and some are fearful of the consequences if it passes in its current form.

It seems that those on both sides of the fence are unhappy with the bill as it currently stands. For example, property development groups such as Urbis believe there is too much ambiguity and red tape to get development off the ground. Environmental groups such as the Nature Conservation Council of NSW believe that there is too much power being retained by the Minister and the Department of Planning and Infrastructure. I will take the opportunity to go through some of the elements of the bill that specifically reflect the concerns of citizens who wrote to me. These concerns include, first, that the bill does not provide a consistent planning regime across New South Wales. This means a lack of certainty for developers and communities.

I acknowledge that concerns in Mosman, for example, will be very different to concerns in Moree, Rockdale, Oatley, Heathcote or the Murrumbidgee electorate. I am not suggesting that there should be one uniform list of requirements for communities across the State, but there is no certainty in the planning process. The State needs consistent standards of governance and regulation so that communities and investors in New South Wales know exactly the rules they are working with. Second, the bill does not seek to balance the social, economic and environmental considerations of land use. Rather, it contains provisions that make subordinate many social and environmental considerations. As an example, I refer to a submission by Rockdale City Council in relation to protecting the New South Wales natural environment:

The proposed changes to the planning system significantly weaken the role and the ability of planning legislation to protect NSW’s natural environment for today and future generations. This has occurred primarily through the removal of the principles of ecologically sustainable development (ESD) in preference to the concept of sustainable development and giving weight to three interdependent key pillars of environment, economic and social outcomes.

At the core of all planning, decisions should be the overarching object of ecologically sustainable development. This ensures that economic considerations are underpinned by environmental sustainability and that environmental and social equity considerations are integrated into all decision making processes. In turn, this will help ensure that the planning framework promotes a resilient environment and society to secure the future of NSW.

Third, the bill will not allow greater community involvement in the decisions impacting on them. Community involvement will be curtailed and appeal rights will be restricted. Extinguishing the right to appeal and concentrating too much power in the Minister and the planning department is clearly dangerous. I would have thought that the Government would understand this point, but it is squandering an opportunity to restore confidence in the system. Fourth, the bill does not provide a primary role for local government in planning or assessment. Local plans will be subordinate to State plans and local government’s ability to review or reject certain developments will be restricted. Rockdale council’s submission notes:

The draft Bill says that Principle 10 is “Local plans should facilitate development that is consistent with agreed strategic planning outcomes and should not contain overly complex or onerous controls that may adversely impact on the financial viability of proposed development.”

Further, under this bill there are mechanisms to provide for fast-track approval of “code assessable” development for a wide range of development types, with no community consultation. Fifth, the Planning Bill 2013 does not implement the Minister’s recent commitment to limit the application of code assessable development to growth areas. In fact, the legislation is silent about where these growth areas are. That means these areas could be anywhere in the State, in any local council and in any neighbourhood, and the wishes of local communities can and will be railroaded under these rules. Sixth, the bill overrides important environmental approvals and concentrates excessive power in the Director General of Planning and Infrastructure, giving the director general the power to override the advice of environmental agencies. As well, the bill does not contain any reference to ecologically sustainable development, thus giving unscrupulous developers ample opportunity to override environmental and social concerns.

The one-stop-shop provisions of this Act, outlined in part 6, mean that the expert advice available from environmental planners can be wilfully sidelined. Also, this bill makes no provision for consideration of the impact of climate change and how our planning system may need to adapt. This is supposed to be a planning system for the future, but far and away the major issue with this bill is that it fails in its first step— namely, to simplify the system for developers, individuals and communities. The Government has squandered a one-in-a-quarter-century opportunity. It is not too late for this Government to fix this mistake. We have only one chance in each generation to redesign the planning system for the State, and this is the opportunity. I conclude with a comment from Rockdale council, which is important:

The effectiveness of the planning system should not be judged solely on its ability to achieve assessment processing timeframes or development approval rates. The challenge for the planning system is to resolve some of the tensions between competing economic, social and environmental needs of society, while recognising the declining state of the natural environment and ensuring that it is afforded the protection required to sustain future generations. The proposed change to the planning system significantly weakens the role and the ability of planning legislation to protect NSW’s natural environment for today and future generations. This has occurred primarily through the removal of the principles of ecologically sustainable development (ESD) in preference of the concept of sustainable development and giving weight to three interdependent key pillars of environment, economic and social outcomes. At the core of all planning decisions should be the overarching object of ecologically sustainable development. This will ensure that economic considerations are underpinned by environmental sustainability and that environmental and social equity considerations are integrated into all decision making processes. In turn, this will help ensure that the planning framework promotes a resilient environment and society that secures the future of NSW.

The Hon. ROBERT BROWN [3.01 p.m.]: On behalf of the Fishers and Shooters Party I speak to the Planning Bill 2013 and the Planning Administration Bill 2013. I will have a lot more to say in Committee. I thank the Minister, his personal and departmental staff for their assistance in explaining the detail of this legislation. In particular, I thank Tim Robertson, who has had the unenviable task of negotiating and liaising with the Opposition, Fishers and Shooters Party, Christian Democratic Party and The Greens. Everyone agrees that the current planning system in New South Wales needs improvement but it is evident that not everyone agrees on how the changes should take place.

This is the Government’s second attempt at fixing the problem; it is still not as good as it could be. For some reason the Government seems to be working on death or destruction deadlines—namely, it has to be done, it has to be done tomorrow or it had to be done last week or the whole world would fall apart. In taking this stance the Government risks being presented with a bill that has amendments that it does not want because we in this place are being forced to make decisions now. Perhaps the Government advisers are reading too much into our intentions, but I will make our intentions very clear before I sit down.

The citizens of this State would be far better served if, instead of trying to bully everyone, the Government sat down and had meaningful negotiations over an extended period of time. This is a complex matter. I do not believe that total agreement can be achieved on such a detailed issue; some will be disappointed. In fact, in talking to members from both Houses I have noted considerable disquiet amongst some Government members. That explains why the first version of the bill was subsequently introduced and we are now left with what can only be described as a two-speed piece of legislation—with two classes of citizens: Those who can object to a development and those who cannot–with the Government determining the growth areas. The Shooters and Fishers Party does not take this issue lightly, nor is it an issue of our making. In fact, this issue is controversial to an extent I have not seen before. As I said, the bill will not please everybody. I have received approximately 4,000 emails on this subject. Interestingly, about 200 or 300 of the emails I have received over the past couple of days have been from members of the mining sector who are pro the bill.

The current planning regime in New South Wales is impractical. It is immersed in bureaucratic red tape. A practical and effective planning system should not be a hindrance to a home owner’s ability to make the simplest renovations, nor should it be a hindrance to the Government’s ability to get projects of State significance up and going with minimal fuss. The question is: Does this bill do that in a way that is not going to put too many citizens in the position where they feel their wishes and desires are being overridden by a Government caveat? When Mr Sartor’s planning bill was being put through in 2008, I remember the intense lobbying of our party from the Coalition and various stakeholders, which was relentless over several months. For anyone interested in our position on several issues at that time, I urge them to read my contribution during that debate—it will not be much different to the one I am making today.

During that debate the Coalition was actively trying to attach itself to every group that had an interest in the bill. The Coalition promised to repeal part 3A and to move heaven and earth when it won office. It pledged that when in government it would provide greater scrutiny, transparency, timeliness, and merit-based decision-making in the planning process and, importantly, it promised to return local planning powers to local communities. Neither the first nor the second draft of the bill achieves that. Members well know that things can change quickly with a new government. Indeed, many of the changes so vigorously opposed in opposition are suddenly not as draconian as they were. The Government repealed part 3, as promised in the lead-up to the election, but this left it with a gaping hole in the planning system. The Government is now trying to fix and replace it with something similar.

I note that departmental officers have looked at similar systems all over the world and have reported, in glowing terms, on how successful they are. Our biggest concern relates to code assessable development. We believe it effectively strips the community from having a say—or at least the community believes that is the case. According to the Government, code assessments will apply only in identified growth areas around transport links. I note the comments made by the Hon. Shaoquett Moselmane that that is not the case. The Government is trying to fix that by introducing some determinations in the bill that will identify those corridors. They may well have merit, but I doubt it.

The Hon. Duncan Gay: They will be good.

The Hon. ROBERT BROWN: I acknowledge the interjection of the Deputy Leader of the House, “They will be good.” They may be good but they are not universally good. They name certain corridors and leave out certain other areas in Sydney. I do not see any reference to 500 metres either side of the Pacific Highway or the North Shore Line—funny about that. As I said, our biggest concern relates to code assessable development. We also have a few other concerns, which are shared by the Opposition and The Greens, in relation to locking in some certainty for affordable housing. Those amendments should be supported by members in the House. I will be moving an amendment to address what I regard as a wrong in relation to a state environmental planning policy and the mining industry.

The Shooters and Fishers Party is sympathetic to the average home owner who wishes to undertake renovations, or young couples seeking to enter the basic housing market for the first time who are facing impediments and incurring costs that make home ownership impractical. This is a system that is burdened with red tape. Indeed, the Government attempted to portray that code assessment as simply complying development writ large. It is not. Complying development is about residential. Code assessment applies to a range of development sizes that far exceed the normal interests of a residential owner, unless that development is taking place next door or across the street.

As I said from the outset, I will have more to say in Committee, given that each part of the bill will be carefully scrutinised and debated in this House—a debate that was effectively cut short in the other place. I repeat: The Shooters and Fishers Party are minded to support amendments that will improve the bill. Code assessment is an area of concern to us. We will make a decision to either support the Government’s string of minor amendments or its major amendment as the debate unfolds. It will then be up to the Government as to what it does. If the Government is not satisfied with the amendments, it might try to do what it did earlier today—send it back to us on Christmas Day. It will get away with it once, but not twice.

The Hon. PAUL GREEN [3.06 p.m.]: On behalf of the Christian Democratic Party I speak to the Planning Bill 2013 and the Planning Administration Bill 2013. This proposed legislation is ultimately about people, the bulk of who are not millionaires. Some are old folk hoping to buy a block of land for retirement. Some are young folk hoping to buy a house and to raise a family. Some are trying to set-up for a future family. Others are trying to buy a place to call home. This important legislation will have immense ramifications. It will most certainly contain issues that will affect a considerable number of stakeholders, community groups and individuals.

It will take time for those issues to filter through to us, as constituents realise the effect this proposed legislation will have on them. This process cannot be rushed. I note that it has taken approximately 2¼ years to reach the Legislative Council. The Christian Democratic Party has received thousands of emails, many against but some in favour of the legislation. We have received written responses and the phones have rung off the hook. Our staff virtually would not have done any other work if they had answered the calls alone. This bill continues to contribute to the record number of phone calls as well as letters and emails to my office. Indeed, over the past year not too many other bills have come close to such an overwhelming response. In September 2009 the Liberal-Nationals had a document titled “Putting the Community Back into Planning”. It stated:

The NSW Liberal & National Parties’ plan to reform the State’s planning system.

The NSW Liberal & National Parties are determined to again restore the community – and public interest – at the centre of government in New South Wales. As Liberals & Nationals, we trust people and want to empower them to make decisions. We also believe that local decision-making delivers better outcomes for communities.

I turn now to the substance of the bills. The object of the Planning Bill 2013 states:

The object of this Bill is to introduce a new planning system for New South Wales as outlined in the Government’s White Paper released in April 2013. Following public consultation a number of changes have been made to the reforms outlined in the White Paper, in particular to increase community participation and local community powers in relation to planning matters and to provide greater scrutiny of planning decisions.

The object of the Planning Administration Bill 2013 states:

The object of this Bill is to make provision relating to the administration of the planning legislation.

The Planning Administration Bill 2013 is cognate with the Planning Bill 2013. I will outline some of the background of these bills. The bills represent the conclusion of a process that commenced in July 2011 with the establishment of an independent panel to review the State’s planning system. In June 2012, following extensive community engagement, the independent panel produced a detailed report that contained 374 recommendations for consideration by the Government. The Government responded with the release of a green paper in July 2012. That set out the major proposed reforms and responded to the independent panel’s report. More than 1,500 submissions were received concerning the green paper and more than 2,000 people participated in community workshops, practitioner forums and online discussions.

A white paper and exposure draft of the bills were released in April 2013 for further consultation, and almost 5,000 submissions were received. The Minister advised during the second reading that in any given year more than $20 billion of potential economic activity passes through the planning system via the development assessment system. An independent study into the proposed planning system undertaken by the Centre for International Economics confirmed that the delivery of these planning reforms will contribute an estimated $2 billion to $3 billion per year to the State’s economy. The Minister further advised the House that the Government followed the approach to leading practice planning systems identified by the Grattan Institute, Productivity Commission and Council of Australian Governments in the development of these reforms.

I was fortunate to have served a term as a councillor and as a mayor. This has provided me with a great insight into planning that, sadly, many policy writers and some of our parliamentary colleagues do not have. In the past I have had to outwork the very laws that were made in this House. As a former councillor, I believe all stakeholders are entitled to a transparent and accountable process for decision-making: The right things, done the right way, in the right order. According to the Environmental Defenders Office in New South Wales, these bills will “shift to up-front evidence-based strategic planning with a focus on achieving sustainable outcomes and partnership between the State, the community, local councils, agencies and the private sector to develop a shared vision for regions, subregions and local government areas”.

We know that the intention of the bills is to promote certainty and confidence in the development assessment and approval process—something that some members already have said in their speeches they do not believe the bills achieve. Given that planning policies are meant to be a contract with our local communities, it is important that they deliver both trust and confidence to the community they seek to serve, which has been sadly lacking in the planning system for quite some time. As stated by the Leader of the Opposition, the Hon. Luke Foley, in his contribution to this debate, the Environmental Planning and Assessment Act 1979 was a revolution in planning law. I cite extracts from the second reading speech of the then Minister for Planning and Environment, the Hon. Paul Landa, when he introduced the Environmental Planning and Assessment Act 1979:

The deficiencies of existing legislation lie in the following areas: its concept of land use planning is too narrow; its relationship and orientation to local government stifle initiatives for State and regional planning and inevitably involve the State unnecessarily in local planning issues; its failure to demarcate respective responsibilities for State and local government in environmental planning decision-making; its concept of planning instruments is too rigid; its failure to integrate techniques for land use planning with environmental assessment and protection; its failure to give members of the public any meaningful opportunity to participate in planning decision-making; its failure to co-ordinate activities of the public and private sectors involved in the development industry; its failure to provide a uniform and rationalised code for development control, causing unnecessary delays and costs in the development process; and its failure to provide the most appropriate organisational and administrative support at the State level.

The bills now before the House deliberately seek to overcome all of these deficiencies in the existing legislation by making the following provisions:

(a) adopting the comprehensive concept of environmental planning, the nature and content of which is to be understood in the light of clause 5 of the Environmental Planning and Assessment Bill which enunciates the objects of the Act. In essence it involves decision-making for planned development and conservation to achieve economic and social growth within the physical environment’s tolerable limits;

(b) enabling plans and policies to be developed at the level of, or from the perspective of, issues or interests of State or regional significance in addition to local significance;

(c) requiring the Department of Environment and Planning to devote its attention to issues having State or regional significance and vesting local government with unprecedented autonomy for local planning;

(d) by enabling a much more flexible approach to be adopted as to the format, content and presentation of planning instruments to overcome what one expert commentator on the Australian planning systems has described as the ordinance and map obsession;

(e) by predicating planning decisions to a prior environmental study and assessment so that decisions affecting the environment can be taken openly, consciously and with full knowledge of probable consequences of implementing the decisions;

(f) by conferring equal opportunity on all members of the community to participate in decision making under the new legislation concerning:

…

Paragraph (f) goes on. It concludes:

Additionally, objectors to applications for designated development can appeal to the Land and Environment Court against the grant of development consent, and any member of the public is given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws;

(g) by requiring public authorities to assist in and contribute to the preparation of environmental studies and draft plans co-ordination of public sector activities can be enhanced, particularly in the context of regional planning, and by establishing the advisory committees under division 5 of part II of the Environmental Planning and Assessment Bill the development activities of both the public and private sectors can be discussed, planned for an monitored;

There is more that can be read into that speech, but basically it shows that the system had cracks in it. They have not gone away. Today we are faced with these bills that continue attempts to achieve the perfect planning legislation. The Act is like a tree: It is above the ground and its content is there for all to see. The Act can be read. But what are not above the ground, and can be concerning, are the regulations. They often are the unseen and are unwritten at the time the Act is passed. The regulations represent the roots and when they are unseen, unwritten and untested there is a chance of rootrot.

It is this type of situation that is making many communities and planning professionals very nervous. Good planning at least requires people to listen to meaningful community feedback. We may not always agree but it makes for better planning if we can adapt, adjust and show some flexibility when addressing some community concerns. In saying this I also note the nimby crowd who do not want anything to happen in their backyard; they have got their piece of paradise and they do not want anyone else to move in. But they forget that previously people did not want them there either.

It is all about compromise. We know there is a plethora of unique communities in metropolitan, regional and rural New South Wales and we must be attentive to their desires if possible. I would like the Minister to guarantee that there will be an open and transparent dialogue with community groups and councils and that due time will be given for these stakeholders to give proper scrutiny to suggested regulations and not just to take some tokenistic approach as has happened many times with planning laws in this State. The Christian Democratic Party has always sought to help the government of the day move its legislation and to amend legislation to make it better.

We know that some people will not be satisfied with this bill. Best practice needs to be the goal, and we note that this bill has come about through the appointment of Ron Dyer and Tim Moore and their recommendations for a fresh new planning course for our State, although I note that in his speech Mr David Shoebridge said that full consideration was not given to their recommendations. There is no perfect planning system. The people of New South Wales will not quickly forget part 3A and neither will many local government areas, for numerous reasons. But we believe that we can improve New South Wales planning. When the Coalition went to the last election they promised to return planning powers to local communities. I was mayor at that time and my council was very excited that planning was coming back to the local area. In 2009 the Coalition said:

[We are] putting community back into planning. We believe that local residents—through councils—are best placed to make local planning decisions affecting their suburbs. After all it is local residents not Macquarie Street planners that have to live with the results.

The new planning system returns planning powers to local councils and the community, with councils being able to modify statewide codes. Councils will determine where code assessable development will apply outside growth areas. I appreciate working with the Minister and trying to get some common ground on some of these issues. It is not a case of one-size-fits-all: metropolitan areas are not the same as regional, rural or coastal areas. We applaud the Minister for at least considering the issue of code assessable development.

Councils will have majority representation on the new subregional planning boards. The legislation tries to provide the right balance between economic, environmental and social considerations. The bill provides for a triple bottom-line approach in the preparation of strategic plans and the assessment of development applications. This means that social issues, such as people needing different types of housing, will be taken into consideration in the planning system, as well as environmental and economic factors. The Christian Democratic Party notes that strategic compatibility certificates have been changed as a result of submissions and consultation and we applaud that.

We note that all applications will require mandatory public exhibition and consultation with councils. Regional planning panels will determine strategic compatibility certificates if a council objects or if there are more than 25 objections from the community. To safeguard against speculative development, development applications must be made within 12 months of a strategic compatibility certificate being issued, rather than two years, and construction must start within two years or the development consent expires.

We cannot legislate for a foolproof system that stops those who have influence choosing to do the wrong thing but we can draft legislation that puts processes in place to stem their unhindered progress. I note that at my stakeholder meetings people realise that the horse has bolted on the use of private certifiers, but an accreditation body to deal with unscrupulous private certifiers is desperately needed so they are held accountable for dodgy work practices. As usual, resource allocation is a concern because the provisions of the new planning legislation mean that local government will need more bureaucracy, which means using more valuable ratepayer funds and utilising more compliance and recording practices. Where does it end? There is cost shifting and more cost shifting.

The Christian Democratic Party notes that all existing environment protection zones will be transferred into the new system through the new local plans. All existing heritage items and heritage conservation areas will continue to be protected as they are now, including historical, cultural and Aboriginal heritage. A new Environment and Heritage New South Wales planning policy will be prepared to further protect heritage items and sensitive environmental areas. We note that recommendations on development applications from the Heritage Council of NSW must be followed. To quote a colleague of mine in the other place:

That concept is expressed in the context of the objects of the Act as being achieved by the integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development.

Rather than the specific ecologically sustainable development principles, there are now three broad but interdependent pillars underpinning the concept of sustainable development. My colleague in the other place—who happens to have been my former deputy mayor—notes that the president of the Local Government Association of NSW expressed the association’s appreciation of the fact that there cannot be this ongoing divide between the planning system and the practitioners in local government who deal with the overwhelming majority of development applications in this State.

Most development applications throughout New South Wales go through unhindered. We tend to be caught up in the controversial development applications. Members of this House should be very aware that only a small percentage gets caught in the net where people want an extra say, extra scrutiny and extra transparency. I am pleased that the Government has amended our regional proposal to reduce discretion in decision-making and provide greater clarity, particularly for complying and code assessable development. This change to the bill will expand the system of independent decision-making panels and maintain existing appeal rights. One of the most offensive parts of the previous planning instruments was the one-size-fits-all scenario. Redfern is not like Vincentia and Hyams Beach is definitely not like Bondi. The local control development plans agreed to by the community must be honoured in the same way as a signed contract. Enforcing mandatory State height codes on a coastal village such as Hyams Beach could have a devastating effect on such special villages.

The developer will want to maximise the height of the building and will contest local laws in the environment court to get that height advantage. There is no doubt that the new planning system, including the emphasis on strategic planning and community participation in strategic planning, is a simpler and more transparent development assessment process. In my experience it seems that if one does not agree with some people on planning issues that suit their outcomes there is an instant tag of corruption. It is unfortunate that this happens in some cases, but I believe that it says more about the calibre of some people than it does about the planning laws or planning professionals throughout New South Wales. We will take the amendments on board and we will move with the ebb and flow of the discussion.

The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [3.26 p.m.]: I make a brief contribution in debate on the Planning Bill 2013 and the Planning Administration Bill 2013. As a number of speakers have indicated, while in opposition the current Government promised to return planning decisions to local communities and, as it stated in at least one pre-election document, specifically to local government. But these bills do not deliver on this pre-election commitment. To the extent that one subscribes to the mandate theory, this bill does not embody whatever mandate the Government sought at the election. The Government claims that it is delivering a simpler and fairer planning system, but that is also not delivered in the bills now before the House.

The bills create a system that is as complex and as unwieldy as the one they seek to replace. The Coalition, when in opposition, sounded like a pamphlet from The Greens Party or, indeed, a residents action group in its opposition to the planning laws and decisions made under them. Now it seeks to impose on New South Wales a system skewed, unashamedly it seems, towards big business and centralisation and further out of the hands of local communities. Time does not permit me to provide a detailed analysis of the legislation’s many imperfections, but I share some key concerns mentioned by previous speakers. The code assessment issue is said to represent an effort to bring greater certainty into the planning system by providing a check list or a code. If a development proposal complies then no further discussion is entered into; it is simply given the tick. However, if I understand the legislation correctly, due to pressures from the Government’s core constituencies, the North Shore and country regions are excluded from being subject to the code assessment proposals, which means that their councils—

The Hon. Robert Brown: Two-speed law.

The Hon. ADAM SEARLE: I note that kind description of a two-speed law. Another way of looking at it is class discrimination. People living on the leafy North Shore and in the Government’s country strongholds, or those who make up the Government’s core constituency, get to keep local democracy. If they do not like a development near them they will still be heard at their local council chamber. But people living in western or south-western Sydney, for example—an area that may not be thought to be the Government’s core constituency—must simply suck it up; they must cop it in the neck as their local say will be significantly curtailed or eliminated altogether. That is completely contrary to the Coalition’s promise at the last election, and the Government needs to be held to account on this proposition.

The idea that community input will be provided for in this system at the front end is deceptive. The mechanisms for community consultation and involvement in the development of local environmental plans already exist and were used, for example, to great effect by my council in determining its major planning instrument. So the mechanisms and the tools for councils exist. There is no problem with mandating community consultation and involvement in the development of local environmental plans or local planning instruments, but residents must be heard, whatever the outcome. They must be given a hearing on development proposals that directly affect them—because that is a basic proposition of the democratic process—whatever the outcome, whoever the decision-maker is. Even under the much-maligned joint regional planning panels effected by the previous Government people were able to be heard. But this proposal seeks to curtail even that.

There are other examples. We have concerns about the state of the bills before the House regarding affordable housing and the current formulation for strategic compatibility certificates. The Government has said that these are only transitional mechanisms until the regional, subregional and local plans are developed and put in place, but there is no such restriction on them in the legislation. They could become a permanent feature of the planning system. However, my observation is that in their current form they are a key corruption risk in this legislation or at least a key risk for undermining the democratic accountability of local planning instruments because they provide for a simple, quick bypass of them.

As I indicated, we have many concerns about the Planning Bill in its current form. However, and despite the exhortations of many, we will not be voting this bill down on the second reading. We will not be copping out. We will reluctantly give these bills a second reading simply to ensure that we, as a responsible Opposition—unlike members opposite when they were in Opposition—engage with the issues and seek to put forward amendments that address those concerns. We want to try, with goodwill, to redeem something worthwhile from this mess of a bill, such that some legislation in this space can pass the Parliament before the end of the year. Fixing the planning system is important. This is an important measure not only for the Parliament but for the State and the citizens who live in it; not only for business but also the residents of New South Wales. We take that responsibility seriously and we will do our best to make this bill better so that it can pass the Parliament and improve the current situation.

The Hon. Lynda Voltz: Point of order: I would appreciate it if you could remind the people in the public gallery of the rules of the House.

DEPUTY-PRESIDENT (The Hon. Paul Green): Order! I advise members in the public gallery that they should make no verbal comment nor applaud. Any such behaviour will result in their being removed from the gallery. You are witnessing democracy in action, and I would ask you to respect that as the debate continues

The Hon. ADAM SEARLE: It is a truism that in planning laws there is a high degree of polarisation between business interests and community interests. We accept that. And we accept that there is probably nothing that can be done to keep everybody happy. If people are more or less equally unhappy, then maybe the balance has been correctly struck. Whether we can get to that position in this place today, tomorrow or by Christmas remains to be seen. But I say this: Like many members in this place and in the other place, I come to the debate with 13 years in local government behind me, including two terms as a local mayor. That does not mean simply opposing every development that may be politically difficult or that may have a high degree of opposition. Local decision-makers can, and in my experience mostly do, take a responsible approach to development decisions and even when there is significant pressure and when the easy thing to do is to say no, it is not lawful because the planning instruments provide for it and it otherwise stacks up.

Most local government representatives take their charge seriously and make responsible and lawful planning decisions. I do not think that we should take an overly antagonistic approach to local government. If we can effect improvements to the system, by all means let us do so, but let us not scratch local democracy altogether because it is inconvenient or it inconveniences mates in big business. We must strike a balance in favour of responsible economic development but the balance must be in accord with social and environmental principles. With those comments, I look forward to the balance of the debate and the Committee stage.

The Hon. JEREMY BUCKINGHAM [3.38 p.m.]: On behalf of The Greens I will make a brief contribution to debate on the Planning Bill. I support the comments of previous Greens speakers. The portfolio holder for The Greens, Mr David Shoebridge, led for The Greens in this debate. At the outset I indicate that I have taken a particular interest in this issue for two reasons. The Deputy Leader of the Opposition said that he had served in local government for two terms. I too served in local government and understand the importance of the planning system to local communities in terms of their amenity, social justice and the State’s economy. Getting it right is absolutely important.

This is critical legislation. There is no doubt about it. It is fundamental to the operation of the State and to the confidence that the people of New South Wales have in their Parliament. That is what this bill represents. The Government gave a commitment to the people of New South Wales that it would enable decisions to be made locally in a number of policy areas, including health, education, and planning. I do not think we can say that this bill represents an empowerment of local communities. Certainly I am concerned about the bill’s impact on our environment, particularly regarding the mining and gas developments in this State. We have seen an erosion of the capacity of community groups to challenge consents given to mining developments.

The Hon. Duncan Gay: We have the toughest rules in the Commonwealth.

The Hon. JEREMY BUCKINGHAM: Certainly there are no more merit appeals and so on for mining developments. We certainly could not have under this legislation what happened in the case involving Warkworth Mining Limited, because the capacity of community groups to challenge decisions is eroded in this bill. There is a view in the community—I will come to this point a little later—that the people’s voice is being diminished. People care about what happens in their local community. I will now address some of the principal concerns that The Greens have with the bill. First, we are concerned about the failure of the bill to accept key elements of the Moore and Dyer planning review, especially having ecologically sustainable development as the principal aim of the new planning laws.

It is to the shame of this House that we are considering stripping away the principles of ecologically sustainable development. Ecologically sustainable development was developed in Australia, starting with a white paper back in the early 1990s. It is a truly Australian contribution to how we consider development globally. The principles of intergenerational equity and the precautionary principle represent a significant contribution to how we consider development and growth globally, and I think it is an enormous shame to strip them out of our planning instruments. Certainly it is the principal concern of the Nature Conservation Council of New South Wales. It is greatly concerned about that, and in its recent report “Nature in the Balance” states:

One of the current objects of the EPA Act is to encourage ecologically sustainable development. Ecologically sustainable development (ESD) is defined as the effective integration of economic and environmental considerations in decision-making processes—

And that is what this bill should aspire to deliver. It continues:

Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

the precautionary principle
inter-generational equity
conservation of biological diversity and ecological integrity
improved valuation, pricing and incentive mechanisms, including the polluter pays principle

ESD is the standard terminology used in over 60 NSW statues, including the Mining Act, Coastal Protection Act, Local Government Act, Water Management Actand Native Vegetation Act.

But the Government is moving away from ecologically sustainable development. As the Nature Conservation Council of New South Wales says, the Government is proposing:

… to replace the existing definition of ‘ecologically sustainable development’ with a new, narrower definition of ‘sustainable development’.

There you have it in one phrase: The Government is stripping from the existing system the whole concept of ecology. I think that is a mistake. As someone who thinks we should embrace the principles of ecology when considering economics and planning, I think stripping it from the current system is a backward step. As the Nature Conservation Council of New South Wales has said, this new, narrow definition of sustainable development is a significant step backwards; it takes us back to the 1990s. It is not consistent with other environment and planning legislation in Australia—for example, section 9 of the Planning and Development Act 2007 of the Australian Capital Territory, chapter 1 of the Sustainable Planning Act 2009 of Queensland, and section 3A of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

The fact that we are moving away from sustainable development raises deep philosophical questions. The term “sustainable development” was first defined in the 1987 Brundtland commission report “Our Common Future”. When I was studying at university it was a guiding document on mapping a sustainable future for the planet. “Our Common Future” is a fantastic report that outlines the limits to growth, how we must live within our means and how we have to value ecology and ecosystem services. That is what is lost in these bills: a capacity to really look beyond short-term, material imperatives. We need to consider all the things that are necessary for our community—not only having a healthy, robust economy but also the important principles of biological diversity and sustaining the life-support systems of our community. They provide enormous amenity in our community.

So much of what is discarded in poor planning decisions is the ecological integrity of our local communities and local environments—and, with that, the amenity of our local communities. It is a loose term, but it was often used in decisions I was involved in as a councillor. In considering some planning decision we would say, “This development will diminish the amenity; this will make this community, this place, a poorer place to live.” Much in this bill will do that. Turning to other elements of this bill, the bill entrenches the role of private certifiers—with the inevitable conflict of interest that creates in the planning system—by expanding complying development assessment by private certifiers and refusing at a minimum to consider models that at least put in place a “blind selection” model for private certifiers to prevent developers choosing compliant or amenable certifiers.

Former member of the Legislative Council Ms Cate Faehrmann had her accreditation bill for ecological consultants rejected by this place. During my time on my local council I worked regularly with those in the building trade and I saw again and again the close relationship that inevitably develops between solicitors, those in conveyancing, those in the building trade, certifiers, developers and even councillors. They depend on each other and they develop relationships—that is the nature of human systems. They develop relationships and they come to rely on each other in ways that I think represent a risk to the integrity of our planning system. Certainly the suggestion about having a “blind selection” model is a good one. I think the failure to incorporate that model in this bill is a flaw. Significantly, one of the key reasons that Labor members are sitting on the Opposition benches rather than on the Government side of the Chamber is the flawed part 3A planning assessment model for State significant development.

Part 3A was certainly a big part of why the previous Labor Government was thrown out of office. The new State significant development assessment model in this bill turns off key environmental and heritage protections. It allows local planning laws to be overridden. It allows State significant development provisions to be used for private commercial or residential development and grants the planning Minister the ultimate discretion to declare any development in any part of the State to be State significant development, thereby prohibiting the courts from reviewing that determination. I do not think this Government has a mandate to do that. I do not think anyone in the community was calling for that other than business interests, particularly mining interests—it would certainly work in favour of their interests and disempower the community. Certainly that is of enormous concern to the community. The Lock the Gate Alliance that represents landholders and community groups across New South Wales is very concerned about the Planning Bill 2013. The Government has stated:

Since coming to office, the Government has acted consistently to return planning powers to the community.

In response, the alliance—which is a significant stakeholder—said:

Nothing could be further from the truth. When the Government said that it would return planning powers to the community, it was expected that they would hand back to Local Councils a decision-making power over coal and gas developments. But in office, they have refused to deliver on that promise. Decisions on major coal and gas mining remain almost entirely with the Minister and the Planning Assessment Commission—a panel of un-elected ex-bureaucrats.

A lot of them are from The Nationals. The alliance continues:

The Government promised to repeal Part 3A of the Planning Act—but in fact all it truly did was to rename it as State Significant development. All of the worst elements of Part 3A are continued in this Bill under the guise of State Significant development, including wide Ministerial powers, exemptions from most other environmental approvals, and extremely limited appeal rights.

In relation to the bill’s capacity to limit the damage and get the balance of mining and gas developments right, the Lock the Gate Alliance states:

… there are a number of changes that will affect coal and gas developments. For example, Division 6.3 sets up an elaborate ‘one-stop’ shop system on approvals for developments that are not categorised as State Significant—giving major power to the Director General of Planning and bypassing other expert agencies. This will affect many miscellaneous developments (that is workers camps) associated with gas extraction and coal mining.

In addition, Division 4.4 of the Bill allows regulations which will prevent consent authorities from setting conditions which are stronger than minimum standards.

For the life of me I do not understand why the Government would want to prevent a consent authority from putting in place stronger conditions to deal with some of the significant impacts of mining and gas development in this State. The Greens and the community believe this is a considerable weakening of the status quo. The bill proposes less prescriptive controls in State and local planning laws. The Independent Commission Against Corruption has cited that as a potential corruption risk by allowing for discretionary determinations. When ministerial discretion sneaks in we should certainly be concerned. We should have a robust planning system, not one that allows determinations to be made at the discretion of a lone man or woman, however accountable they may be. We need a planning system that is based on science, strategic planning and ecologically sustainable development.

Those less prescriptive controls provide fewer certain protections for local communities and local planning laws. There will be less prescriptive controls in important State planning policies that currently protect a range of important environmental assets, including coastal land, koalas and rainforests. The abolition of those important planning instruments is a very significant element of the bill. We have a legacy in this State of ensuring significant protections for our environment through the State environmental planning policies, some of which have been critical to improving the environment of New South Wales.

Some polices have ensured that inappropriate developments have not occurred and their proposed abolition is of enormous concern to The Greens. Since the 1970s New South Wales has ameliorated some of the worst impacts with State Environmental Planning Policy No. 14, Coastal Wetlands, which restricts the clearing, draining, filling or construction of levees on mapped coastal wetlands without the consent of the director general. That is a very important State environmental planning policy as there is so much urban pressure, especially on the coast. Importantly, State Environmental Planning Policy 19 protects bushland in urban areas. There is so much development pressure on the peri-urban fringe.

The Hon. Michael Gallacher: Peri-urban?

The Hon. JEREMY BUCKINGHAM: I may have just made that up.

The Hon. Michael Gallacher: Yes, I think you have.

The Hon. JEREMY BUCKINGHAM: When the developer is under economic pressure remnant bushland is sacrificed. In Orange around the white box woodlands there were conditions on approvals that the bushland be retained. However, down the track modifications were made, the developer lodged an amended layout for its subdivision, the white box was pushed out, the habitat disappeared and Orange is the worse for it. We should make sure that environmental instruments are in place to protect critical habitats. That is enormously important. I only have a couple of minutes speaking time remaining—which I know is a tragedy. I could talk for hours and hours on this subject.

The Hon. Michael Gallacher: You can.

The Hon. JEREMY BUCKINGHAM: In fact, I will; I will speak for six hours. We have heard from thousands of people across New South Wales who are concerned about the direction of these planning laws that strip planning power from local communities. The laws remove their voice, their capacity to participate and their right to challenge inappropriate developments in the court. This legislation is a massive step in the wrong direction. The Greens will vote against the second reading of the bill.

Mr David Shoebridge: The Property Council does not like it.

The Hon. JEREMY BUCKINGHAM: No.

Mr David Shoebridge: They are angry with you.

The Hon. JEREMY BUCKINGHAM: They are indeed. The Property Council is probably watching this debate—I say hello to the Property Council. Certainly this legislation strips away power from the community. When the Government came to office it said it would do exactly the opposite. Many communities around the State that are fighting inappropriate and what will be State significant developments in the mining and gas space are appalled that the Government is moving in this direction. It is another area where the Government promised to get the balance right and it certainly has not done so. I will join my colleagues in The Greens to vote against this bill.

The Hon. JAN BARHAM [3.58 p.m.]: I oppose the Planning Bill 2013. It is a very sad day when legislation such as this comes before the House, particularly when the people of New South Wales were promised something very different. In the lead-up to the 2011 election people were promised that planning powers would be returned to them after 16 years of winding back the protections and the planning proscriptions that were put into the Environmental Planning and Assessment Act 1979. That Act was important in setting a standard of review, assessment and balance for New South Wales but we saw things change over 16 years. It is fair to say that the changes began in 1998 with the integrated development assessment legislation and it was all downhill from there in relation to meeting the needs of the people of New South Wales.

There are various views about the role of planning. The Better Planning Network has done a considerable amount of work to raise awareness about the implications of the new legislation. The Better Planning Network has undertaken extensive consultations and information sessions and used its website, Twitter and other modern dissemination tools. People will be shocked when they have a true understanding of how these bills will affect their lives.

Pursuant to sessional orders business interrupted at 4.00 p.m. for questions.

Item of business set down as an order of the day for a later hour.

The Hon. Robert Brown: Two-speed law.

The Hon. Lynda Voltz: Point of order: I would appreciate it if you could remind the people in the public gallery of the rules of the House.

The Hon. Duncan Gay: We have the toughest rules in the Commonwealth.

And that is what this bill should aspire to deliver. It continues:

Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

· the precautionary principle

· inter-generational equity

· conservation of biological diversity and ecological integrity

· improved valuation, pricing and incentive mechanisms, including the polluter pays principle