Planning in NSW – back to the days of Askin

Last week’s Stateline included a devestating critique of the NSW planning system.

Tim Robertson, a barrister whose work includes advising developers, stated that the state Labor government had taken NSW planning back to the bad old days of the infamous Askin government.  He says that local democracy, community participation and checks and balances have been severely curtailed and power concentrated in the hands of the planning minister.buildingflats

This comes as no surprise to many people when you consider the NSW Labor Party has taken over $10 million from developers over the past few years (democracy4sale.org).

Marrickville is suffering from this new undemocratic planning system, with the massive Lewisham Towers overdevelopment being considered under Part 3A, and three big development applications being referred to the newly formed and unelected Joint Regional Planning Panel (the minister appoints 3 out of 5 members of these panels).  The controversial plans for the Marrickville RSL site are one of the developments going to the unelected panel for decision.  Read the transcript below to find out why!

The whole transcript can be found here.  I’ve reproduced the interview with Tim Robertson at length as it is highly informative.

NICK GRIMM: Tim Robertson is a leading Sydney barrister, a senior counsel specialising in environmental law. His clients include government, residents groups and property developers.

He’s familiar with the Catherine Hill Bay case, having once represented Lake Macquarie Council in action against the developer Rosecorp. But he says that case just highlights the bigger problem with planning in this state.

TIM ROBERTSON: The changes that have been made since 2005 have concentrated enormous power in the hands of one person, the Planning Minister, and it has returned the state to the position we were in in about 1965. If you remember, the Premier of the day then was a fellow called Askin. We are now in a position in our planning system that we have returned to the days of Bob Askin.

NICK GRIMM: So in a nutshell, what’s wrong with the way the planning and development is conducted in this state?

TIM ROBERTSON: Well, we’ve taken a huge area of development decision-making which previously – where power had been previously diffused amongst the community and in community leadership nodes such as local government, and we’ve concentrated that power in the hands of one person. And that person’s decision-making is essentially ungovernable. The court can only police the boundaries of it, it can only police legality. But there is really no merits review of that decision any longer, because the Government has cut out merits review by appointing panels or by requiring concept plans to be prepared, both of which are steps taken for the purpose of preventing judicial review of the Government’s decisions. And in the case of major infrastructure projects, which the Government decides are important enough to classify as such, there is no right of appeal by anybody for any reason and the implementation of those projects, even in breach of conditions applied by the minister, him or herself, is uncontrollable by the courts.

There’s a further problem with the system, and that is in the process of development decision-making, the system now is, under Part 3A, that the developer writes its own conditions. In other words, they’ve contracted out the process of regulation so that when the developer makes what is called a statement of commitments, then that statement represents the controls that the minister implements over the development. So it’s a case where the poacher has effectively become the gamekeeper.

NICK GRIMM: And moreover, we’re talking about a concentration of power in the hands of a minister who’s a member of a party which is a recipient of very large political donations from property developers.

TIM ROBERTSON: Well you see none of my criticism depends upon that. My criticism is of process and policy. Because what I see now are bad decisions being made, and they’re being made because the kind of controls over the decision-making process have been eviscerated by Part 3A of the Planning Act.

NICK GRIMM: Tim Robertson, you also act for property developers. Now, given what you’re saying about the planning processes in this state, what sort of advice do you give your clients when they come to you with a project that they’re having difficulty getting off the ground?

TIM ROBERTSON: Oh, I tell them to go to Part 3A, go to the minister. You never advise your clients to go to counsel if they can avoid it. So if they fall within the description of a major project or if they have some – if there’s some flexibility in the description, they should go off to the minister or the minister’s department and persuade them to treat it as a major project.

NICK GRIMM: OK, so exactly why do you tell property developers to go to the minister?

TIM ROBERTSON: First of all, there’s far less scrutiny; secondly, the public don’t have a look in; thirdly, there’s a possibility of getting an approval faster, although recently it’s been very difficult to get quick approvals from the department. And finally, if there is anything dodgy about the development, then it’s not likely to be looked at with the same degree of scrutiny as if they went the local government route. And I think possibly the most important thing is that if the minister does appoint a panel or has a concept plan requirement, then that cuts out the court. So if objectors have rights of appeal because it’s what’s called designated development, they can’t exercise those rights of appeal. So it makes it – it tidies it up for property developers. It reduces the risk of development and makes the – makes development easier because they don’t have to comply with planning controls. Planning controls are just out the window, unless there’s an actual prohibition, and even then the minister can get over the actual prohibition by rezoning the land, at the same time as granting a project approval under Part 3A, and has done so and did so in several controversial cases, including the Rosecorp development at Catherine Hill Bay.

NICK GRIMM: So, essentially, if a property developer has a project that may lack merit, their best option is to go straight to the Planning Minister?

TIM ROBERTSON: There’s no planning lawyer in the state who would give different advice.

NICK GRIMM: That’s a pretty damning indictment of the way planning is conducted in this state, isn’t it?

TIM ROBERTSON: It’s a reflection of the actuality, that is, that power has been concentrated in the minister’s hands and for the purpose of facilitating development approvals, certainly not for purpose of enhancing environment scrutiny of development and certainly not for encouraging community participation in development or implementing well-worked-out planning controls that local government apply to small people, small developers, who still have to go the local government route.

NICK GRIMM: Kristina Keneally told the Parliament this week that she wants the NSW planning system to be the best of any state or territory in the country. Now, in your view, what is going to need to overcome to achieve a goal like that?

TIM ROBERTSON: Oh, she’ll have to sweep away the last five years of legislation, which has reversed the progress in planning by 30 years. And – but, you know, the Government’s been telling lies about what its intentions are in relation to planning for years. They claimed that Part 3A would increase public participation, whereas it’s only reduced it. To some extent, it’s vitiated community participation altogether by giving the minister power to ignore plans and controls that have been developed in cooperation with the community. So it has, I think quite deliberately – and the Government’s known what they’re doing – quite deliberately taken these steps to avoid community scrutiny of controversial development.

Where is today’s Jack Mundey?

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