Critique of Putting the Community Back into Planning

The Leader of the Opposition
Barry O’Farrell MP

Dear Barry,

I read with some interest the Liberal Party’s Planning Reform Agenda: http://www.barryofarrell.com.au/documents/putting-the-community-back-into-planning.pdf and the more recent commitment for the Liberal Party to rewrite the State’s planning laws: http://www.startthechange.com.au/index.php?option=com_k2&view=item&id=169&Itemid=83

I write candidly to you as a former Councillor on Woollahra Council, legal graduate and now I am General Manager of Fivex Commercial Property. All up I have over 10 years of practical experience dealing with the NSW town planning system.

I think you have missed one of the big points in the debate relating to Planning Reforms and actual or perceived corruption in the Planning System.

In my view it is not enough to simply oppose favourable treatment and corruption (“ Improper Conduct “) in the Planning System, you need to actually oppose the root causes of Improper Conduct. I think a useful political slogan for you would be “Not only am I tough on corruption, I am tough on the causes of corruption.”

It seems to me that the Opposition is very focused on the symptoms of Improper Conduct such as Part 3A of the Planning System and political donations.

Implement the doctrine of separation of powers in relation to the assessment of Development Applications:

In my view, no serious effort to resolve Improper Conduct can include a package of reforms that does not create a separation of powers within the town planning system. There is an inherent conflict betweeen a local Councillor or Planning Minister voting on a development application and making a political judgment as to whether or not the proposal should be approved and the public interest in ensuring all town planning decisions are made on merit alone.

It makes little difference if the politician sits in Macquarie Street or Parramatta City Council. Ultimately, you will still get a political decision if a politician is making the decision regarding a development application. The only thing that changes is the perception of what may or may not be ‘popular’.

In our system of Government we have implemented the separation of powers doctrine for criminal matters. As you know, The Department of Public Prosecutions is responsible for the administration of the more serious criminal offences in our State’s criminal justice system. It is a system that is not perfect, but at least it is a system where criminal prosecutions are based on the merit of the evidence before the prosecutor rather than the wishes of the front page of the Daily Telegraph. If we can implement the separation of powers for the very politically sensitive area of the prosecution of criminal matters, then implementing the separation of powers doctrine for another politically sensitive area such as town planning development applications is a viable and appropriate reform.

In my view, no elected official should make decisions on Development Applications. The separation of powers doctrine is a good one and I know it is a very broad gerneralisation, but the role of the legislature should be to make the rules. The role of the Executive is to implement them. Where the town planning system currently runs into difficulties is that the separation of powers doctrine is not well established in the vast majority of Councils. In most Councils, even the professional staff are tainted by the political whims of the Mayor and Councillors. In my view, the solution to the problem is very simple. Remove Councillors from the decision making process relating to DAs and replace them with Independent Hearing and Assessment Panels (the “ Panel “). I believe this is the type of decision-making model that has been implemented in South Australia and to a small and piecemeal extent in NSW with the new Planning Assessment Commission model.

The Panel model is a good one and should be advocated by you as a means of appropriately creating a separation of powers for town planning matters. There would need to be strict rules as to who can be appointed to the Panel, their tenure, their remuneration, what other employment activities they can accept and of course the circumstances in which they can be removed. It goes without saying that no elected official should be on the Panel and the process for the appointment of Panel members needs to be robust enough to ensure the Panel is not stacked with unfairly biased individuals either pro or anti-development. The Panel could potentially be controlled by local Councils consistent with your paper “Putting the Community Back into Planning”, however, it would be better if the State Government had some kind of oversight of the appointment of Panel members.

Review the reasonableness of town planning controls across the State:

The other reason there is so much uncertainty regarding the town planning system is that the town planning controls as adopted by various Councils, whether they be a Local Environmental Plan (“ LEP “) or a Development Control Plan (“ DCP “) are often approved with little regard to the existing built form of an area or with little opportunity to create housing or employment growth.

The current approach of the State Government was to use Part 3A of the Planning System as a means of approving large-scale development that is not consistent with the town planning rules that apply to a particular local government area in order to promote housing or employment growth. This approach is of course piecemeal in nature, lends itself to actual or perceived favouritism in the approvals process and does not promote a coherent strategy for the State.

If you are to successfully remove the application of Part 3A of the Environmental Planning and Assessment Act, then you will need to undertake a thorough review of the town planning controls for all local government areas as they currently exist and ensure that the town planning controls contained both in the LEP and the DCP for each local government area reflect the current built environment and allow for real growth in office and housing accommodation. If sufficient land use capacity is not created there will be significant economic consequences for NSW given the importance of the development and construction industries to our State’s economy. Unfortunately, given the geographic constraints of Sydney, no land release policy could ever cater for Sydney’s needs.

I would suggest a practical step would be to amend and significantly increase the height and floor space controls for all local government areas near major transport nodes such as Train stations. Not only is there good economic justification for doing so, but just as importantly there are very good sustainability reasons for doing so in order to encourage more people to use public transport.

Remove The Unduly restrictive nature of the Zoning System:

There are serious problems with the zoning system as it currently exists which unduly limits competition in the Shopping Centre market and unnecessarily stifles the supply of new housing in our cities. Obvious examples include North Sydney and Parramatta CBDs where there is a surplus of office accommodation and town planning restrictions prohibiting office buildings being converted to residential accommodation.

My recommendation would be that the zoning system needs to be opened up to enable appropriate competition in the land use marketplace and to ensure sufficient supply of housing and office accommodation is approved and built in order to meet demand for the ever changing needs of our community. Conversely, should the demand fall for a particular land use, then that property should be allowed to be redeveloped into an alternate use consistent with market principles and ensuring appropriate amenity protections for the neighbours.

Implement Other Areas of Planning Reform:

The town planning system is no longer just about the amenity impacts on the neighbours to the proposed development. It is now a system that focuses unnecessarily on the use of the land devoid of an assessment of the amenity impacts of that use on the neighbours, construction issues, engineering issues and quite perversely the assessment of development levies.

I have not touched on the current rorts that exist in the current development levy system, nor the direct costs faced by the Industry when it comes to preparing the documentation required at the development assessment phase and the obvious delays and the associated holding costs caused by the present unworkable town system. I also have not discussed some of the problems with the Land and Environment Court as it is presently regulated and changes to existing use rights regulations that are unduly restrictive.

I support your plan to review the Town Planning System. I would be more than happy to meet with you, your staff or the Shadow Minister to discuss any of the issues I have raised in order to assist in “Making NSW Number One Again.”

Best regards,

—
Lesli Berger
General Manager
Fivex Commercial Property