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Issue #1600      July 3, 2013

NSW planning law to stamp out residents’ rights

The development lobby has welcomed proposed new NSW planning rules, described in the O’Farrell government’s white paper “A New Planning System for NSW”. However, resident action groups have risen in revolt, because under the new system residents would lose their current right to appeal against particular development proposals that disadvantage them.

In addition, the new system effectively turns local councils into subsidiaries of the state government, and the state’s natural and cultural environment, especially its built heritage, is now under serious threat.

The system involves the formulation of development codes to be implemented via regional growth plans, sub-regional delivery plans, and local plans.

The current planning system is based on the NSW Environmental Planning and Assessment Act 1979. The white paper now claims: “… over time, the Act has become too complex and difficult to navigate and has not responded to the changing nature of our modern economy and society.”

However, the current Act does in fact respond to the “modern economy and society”. It was established in 1979, after a long period of struggle against grossly unsympathetic development, which in one case would have seen the horrific demolition of Sydney’s historic Rocks area.

The major development industry who were responsible for those appalling initiatives is still at work and its overall objectives remain unchanged.

Big developers to gain advantage

The white paper barely mentions the loss of appeal rights for residents, but describes in fulsome praise the claimed advantages of the system. There certainly would be advantages in achieving the document’s two predominant objectives, i.e. a faster rate of housing production, and a faster rate for processing development applications.

However, if the white paper’s recommendations are implemented, these objectives would be achieved at the expense of other criteria of crucial importance for local residents, as well as environmental groups.

According to the white paper, residents’ loss of the right to appeal against individual development proposals would be more than compensated by their involvement in the preparation of local development plans.

However, the current system is based on hundreds of thousands of individual cases where complying proposals had the potential to disadvantage the local community despite their compliance with then-current requirements. The primary reason the current system is complex is because it is thorough, not because it is unnecessarily bureaucratic.

Moreover, the participation of residents in the preparation of local plans is likely to have a marginal impact on the final product at best.

The local plans must be consistent with regional and sub-regional plans, which are prepared by the state government and councils, The white paper states: “Local plans should facilitate development that is consistent with agreed strategic planning outcomes and should not contain overly complex onerous controls that may adversely impact on the financial viability of proposed development.”

Local plans are to be prepared by residents in conjunction with the local council, but also in conjunction with local businesses, who may have overwhelming influence on the council, and whose interests are potentially at loggerheads with those of residents.

The “participation” of residents is likely to be limited to commenting on the draft local plan, prepared by committees of government appointees. The plan’s concepts may be difficult for residents to understand, and its implications may only become clear when a development proposal is implemented – and when it would be too late to object.

And finally, as the ultimate decision-maker the government can modify or replace a local plan altogether, and is only obliged to “consider” the community’s wishes. As the document notes:

“All plans will be made by the Minister for Planning and Infrastructure … following consideration of the plan, and [if] the appropriate level of community participation has been taken into account in the development of the plan.”

Councils will be involved in the preparation of sub-regional plans which will specify site zoning, but the controls for implementation of zoning proposals “will be set out in local plans and cannot be overridden by councils … . Councils will not be able to amend provisions the Minister includes in a Local Plan.”

Read between the lines

The white paper’s absence of detail about several areas of public concern about development is a warning sign that all is not right. It refers frequently but vaguely to protection of “the environment” or “heritage”. It refers a few times specifically to conservation of natural significance, but only refers in one sentence to conservation of the built environment – and makes no commitment to it.

It frequently refers to the need for maximising new housing development, but does not explain whether this will involve massive new multi storey apartment construction. It refers only fleetingly to the need for affordable housing.

It is silent on the impact of the new planning policies on “energy resources, including mining, extractive industries and electricity generation.”

Its recommendations concerning the blending of certain types of land use zoning have the potential for more efficient processing of development applications, but also for clashes over residential as opposed to industrial and commercial uses.

Overshadowing, a perennial source of potentially bitter conflict between developers and residents, is not mentioned in the document. The extent of overshadowing will apparently be dependent on the “envelope” form of new development, which will be determined in the local plans, rather than being site-specific.

Who benefits?

The overwhelming impression given by the white paper is that the new planning system is aimed at facilitating the swift approval of new development, if necessary by steamrolling over the objections of local residents and/or environmental organisations.

The document also promises to facilitate the involvement of private firms in government projects. It states “Particular infrastructure … will be declared to be Public Priority Infrastructure and the private sector will now be able to contribute earlier in the design and planning process in the knowledge that these projects have been authorised to be carried out”, and that “state significant development will be given full effect in the new planning system.”

A disturbing aspect of the white paper’s proposals is the “simplification” of referrals that developers must make to government agencies, including those dealing with fire and flooding protection. The document notes: “The inefficiencies in the current assessment process can contribute to uncertainty and delays in the planning system, adversely affecting investment and economic development.”

It claims that “many stakeholders supported the proposal in the [previously published] Green Paper to abolish concurrence and referral requirements”. However, the only stakeholder it referred to specifically was the developer lobby group, the Property Council of Australia.

The new planning regulations are clearly intended to override the objections of residents and community and environment groups to major development proposals. They must be defeated if the people of NSW are to defend and improve their lifestyle and environment.   

Next article – Rene Gonzalez: I didn’t Go to US to Fight People

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