Debate has begun in the NSW Upper House about the Planning Bill 2013. This legislation is a direct threat to our communities and environment. Many of the Green’s concerns were spelled out on Wednesday night by David when he lead the debate on behalf of the Greens in the parliament.
It is now a more crucial time than ever to raise awareness about the impacts this proposed legislation will have on our local communities end environment. Don’t forget to sign the petition, and then share it on your Facebook and Twitter: http://davidshoebridge.good.do/
Mr DAVID SHOEBRIDGE [8.52 p.m.]: On behalf of The Greens I speak in opposition to these cognate bills, the Planning Bill 2013 and the Planning and Administration Bill 2013. For decades planning in New South Wales has been a very contentious matter. If we cast our minds back 40-odd years to the late 1960s and early 1970s the community and residents had no right to have a say on strategic planning or individual development matters. We saw the then Liberal Askin Government approve the wholesale destruction of large and important parts of our city, and our coastal and regional communities. A wave of opposition arose across the State and some four and a bit decades ago we saw one of the first genuine stands that led to fundamental change.
We saw Jack Mundey from the Builders Labourers Federation joining with the battlers from Kellys Bush in Hunters Hill, Sydney, to form the unique combination of a working-class man from the trade unions and an upper-middle-class grouping of women from Hunters Hill. They joined together in a unique combination to oppose what was then planned by a developer called AV Jennings to destroy a number of hectares of remnant bushland in the centre of Sydney for a series of project houses. The women first went to the local council and said, “You cannot allow this to happen.” The local council said, “We don’t have to listen to you; we are not listening to you. The law says your views are irrelevant”. They then went to their local State member and said, “You cannot let this happen, it is a beautiful part of our local area.” The State member said, “We don’t have to listen to you; we are not listening to you. The law says your views are irrelevant”. They escalated the issue to make representations to the then Premier and Minister in charge of planning and they were ignored at each stage.
The only answer they got was from Jack Mundey and the Builders Labourers Federation. They joined with Jack and that union joined with the community and said, “We will not let this be destroyed.” The members of that union would not let it be destroyed and they put a ban on any work at Kellys Bush. That ban was known as a “black ban”, but after an historic meeting at Paddington Town Hall it became the first “green ban”. The green ban at Kellys Bush stopped the destruction of Kellys Bush. It was followed by a series of other crucial social movements. There was a green ban at The Rocks on a development that would have destroyed low-income housing. The green ban protected that beautiful early colonial heritage in The Rocks. Those heritage buildings were slated for destruction by the then State Government, but they were saved by the green bans movement. The movement went on to protect other historic and essential parts of the State that we greatly prize such as The Rocks, the Royal Botanic Gardens and Centennial Park. We owe the preservation of those parks to the amazing movement that said for the first time that the community has a right to have a say in development and the laws must be changed to guarantee that.
It is a credit to the then Wran Government that in 1979 this Parliament passed what were landmark laws at the time—the Environmental Planning and Assessment Act, which, for the first time, guaranteed the community a right to have a say in setting the instruments, the local environmental plans and the rules for planning in the local community. It gave those communities, every resident, the right to have a say, to have their voice heard about the development that was occurring on their street that would impact upon them and their neighbourhood. It is those rights that were not gifted by this Parliament but were granted by this Parliament after decades of social struggle. It is those rights that are on the chopping block with this bill, and this fundamental attack on community and environmental rights that are encapsulated in the Planning Bill 2013.
After the passing of that Environmental Planning and Assessment Bill in 1979 the law on planning was sliced and diced by State governments delivering big money to the developers. What once was a landmark bill in 1979 was so watered down in favour of the development industry that we had planning legislation that, by the time we got to the dying days of the former Labor Government, was renowned not for its environmental protection or enhancement of community rights but for being able to deliver for the developers. It was a cash-for-favours culture that ultimately dragged the former Labor Government into utter disrepute. For many people the final straw was in 2005 when Labor introduced the notorious part 3A into the Environmental Planning and Assessment Act, which gave the planning Minister the ability, literally, to approve any development anywhere in the State regardless of what the local environmental plan or the local laws said.
Ongoing corruption scandals and widespread community opposition were highlighted by the work of my predecessor Sylvia Hale as The Greens planning spokesman. Ms Sylvia Hale identified time and again the obvious trail throughout the part 3A planning process: a donation to the Labor Government, followed by the initial decision to declare a project State significant, followed by a further donation, followed by the original in principle planning approval, followed by a further donation, and finally the approval of a bigger development.
In the lead-up to the March 2011 election the Coalition then in opposition made a number of commitments to the people of New South Wales, including returning planning powers to the community and re-empowering local councils to make decisions on planning. Much of the 2011 campaign literature from the Coalition Opposition looks like a cut and paste from The Greens election material from years before. It speaks of returning powers to the community, standing up against overdevelopment and being the voice for ordinary people against the interests of big developers.
I note that the Minister for Planning and Infrastructure, the Hon. Brad Hazzard, is in the President’s gallery tonight. I do not deny that there has been detailed and lengthy consultation on this bill. It was a three-stage process that started with the Moore and Dyer review, went to the green paper, then to the white paper and eventually led to the creation of this bill. I am not suggesting that there has been a lack of consultation. People were asked their opinions but, as is so often the case with State governments of both stripes, those opinions were roundly ignored—unless they came from the Urban Development Institute of Australia or the Property Council. As always, those opinions seem to be the ones most valued by governments in New South Wales.
Contrary to the promises the Government made at the last election, we now have a planning bill that does not put people, communities or the environment at the heart of the system. Remarkably, the O’Farrell Government’s planning bill takes us backwards from the worst of Labor’s planning laws. It reduces the power of local communities and their elected councillors. It centralises planning powers in the Minister, the director general and unelected regional boards. It dumbs down the law, expands the role of private certification and at every level delivers for developers. The challenges of climate change are not mentioned anywhere in the bill. The Government has entirely stepped away from that issue.
The Hon. Dr Peter Phelps: Ha, ha, ha.
Mr DAVID SHOEBRIDGE: I note the Government Whip’s laughter at the concept that there is an obligation to deal with climate change in planning laws. The Greens have always been strong advocates for a community-centred planning system. We have opposed the State Government’s constant attacks on the powers of local councils as well as the ministerial call-in powers that allowed developers to corrupt planning processes with a donations-for-favours culture. As the Hon. Luke Foley said in his contribution, a fundamental rewriting of the planning Act is a once-in-a-generation opportunity to get things right. We have an obligation to ensure that we get the balance right when enacting the planning laws that will underpin so many resource allocation, infrastructure and development decisions that will be made in this State in the coming decades. We are obligated to get it right, but these bills fail to deliver.
I will now turn to some of The Greens specific concerns with these bills. Our first concern is the Government’s failure to accept the key elements of the Moore and Dyer planning review. I said earlier that the Government had consulted. One of the Government’s first actions upon coming to office was to establish a statewide review. Tim Moore and Ron Dyer held about 1,000 meetings and met with people from every corner of the State. They met with big developers, heritage groups, conservation groups, residents groups and the Opposition, The Greens and crossbench members. Their wonderful two-volume review is essential reading for anyone interested in what is wrong with planning law in New South Wales and what must be done to set it on track.
What did the Government do with the Moore and Dyer review? It dug a big hole in the backyard of the planning department and buried it. On the same day that it notionally released the Moore and Dyer review through a link on a remote part of the planning website, the Government also produced its green paper, which largely ignores the Moore and Dyer review. Indeed, the ignoring of the review has continued all the way through to the creation of the Planning Bill. The Moore and Dyer review said that ecologically sustainable development should be the first and central principle in any planning bill. The Government has ignored and sidestepped that recommendation.
Ecologically sustainable development means that planning decisions are akin to a three-legged stool: society, the economy and the environment must be considered. Unless all three legs of the stool are solid, the planning regime will fall over. There is no question that the Government has entirely removed the environment and mostly removed the society from this Planning Bill. It has created a one-legged stool that focuses only on the economy. The bill also ignores the precautionary principle, the concepts of intergenerational equity and polluter-pays principles.
The Government has also ignored the core recommendation in the Moore and Dyer planning review to establish a genuinely independent planning commission to determine State-significant developments. The Government ignored that recommendation in its green paper, its white paper and now in its Planning Bill. A genuinely independent State planning commission is the only way to take politics out of big development matters. It is extraordinary that the Government has not adopted that recommendation.
The third key part of Moore and Dyer’s planning review was their statement that the people of New South Wales have felt for decades that they have had the right to make submissions on planning matters but, having made the submission, they were patted on the head by the decision-maker, sent on their way and roundly ignored. Moore and Dyer said that has to change. Community consultation in setting strategic planning instruments and making individual planning decisions must be meaningful. Opinions must not only be sought but also integrated into the planning decisions of authorities at local and State levels. The first failing of the bill comes as a result of the Government’s refusal to accept the key elements of its own planning review.
Secondly, the bill entrenches private certifiers, which will create an inevitable conflict of interest in the planning system. The bill seeks to expand complying development assessment by private certifiers, who are selected and paid for by the developer. In 1998 when the Labor Government first introduced the concept of private certification into the Environmental Planning and Assessment Act the now planning Minister—all credit to him—stood in this Parliament and said it was outrageous. He said allowing developers to choose and pay for their certifier would create an appalling conflict of interest. However, now that the Hon. Brad Hazzard is the Minister, this Planning Bill expands the role of private certifiers. That is quite remarkable.
If there is a view that the genie cannot be put entirely back into the bottle now that private certifiers have been released, why will the Government not even consider the minimum standard of putting in place a blind selection model to prevent private certifiers from being chosen by the developer? That would prevent an inevitably conflicted relationship developing between the private certifier of choice and the developer. The bill also repeats the flawed part 3A-style assessment for State-significant development. Many of the bill’s provisions on State-significant development have been cut and pasted from Labor’s grossly discredited part 3A laws.
They include the provisions that turn off the key environmental and heritage protections, that allow local planning laws to be overridden and that allow State-significant development to be used for private commercial or residential development. On that matter the Minister has told us not to worry that it is not in the bill because the Government will introduce codes that will further restrain State-significant development. If it is not in the bill, it should not be approved in this House. Importantly, just as Labor’s old part 3A laws provided, this bill allows the Minister carte blanche to declare anything as a State-significant development. Proposed section 4.28 (3) in division 4.6 of the bill provides that State-significant development will be:
Any development for which consent is granted (or purports to be granted) by the Minister as State significant development is taken to be State significant development and to have been such development for the purposes of any application or other matter under this Part in relation to the development.
In short, the Minister decides what is State-significant development and, as with other provisions in the bill, there are no rights of appeal of the Minister’s decision. The bill creates new animals called regional and subregional planning bodies, which will be dominated by State Government appointments, which are empowered to override and direct local council planning decisions. The Government says not to worry because there will be local government representation on these bodies. But the bill allows for the chair and up to four other members of every subregional planning board to be appointed by the Minister, and for only minority representation from local councils. Those subregional planning boards will be making the big land allocation decisions in New South Wales—the large rezoning decisions, the large decisions about converting bushland to industrial development, the large decisions about converting traditional detached housing stock into high-density and high-rise housing development—and there will not be any democratic control on those decisions.
This bill proposes strategic compatibility certificates that allow the director general or a joint regional planning panel to impose development on local communities in defiance of local planning controls, effectively spot rezoning, and it proposes to allow those discretionary decisions to benefit developers in direct breach of the local planning controls. This is a serious corruption measure that is not limited to just growth centres or identified high-growth areas.
Another significant concern is code assessable development. This Government is giving all local councils the opportunity to roll it out across their entire local area. While there are some great local councils, there are also some rotten local councils that do not want to listen to their local community.
The core problem with code assessable development is that the Government wants to roll it out in growth zones and in local council areas across the State and this development can be approved with a 25-day turnaround, with no right of say by anyone. What does the Government want under its new code assessable development rules? It wants as many as 20 townhouses built in residential streets under code assessable development. With a 25-day turnaround, people will not be asked for their opinion. It wants to have entire residential flat blocks built in local shopping centres, with no right of say by anyone.
The bill also proposes a substantial reduction of protection for heritage items, particularly local heritage items which are given no protection. It has included less prescriptive controls in State and local planning laws, which has been directly criticised by the Independent Commission Against Corruption. The very corruption measures that led Labor into error are being repeated, and on a grander scale, by the Government through this bill. The bill has less protection for biodiversity through more flexible offset arrangements. It removes some of the key decisions from the Office of Environment and Heritage, such as native vegetation, and hands them over to Sam Haddad.
The bill fails to put in place a genuinely robust engagement with the community even at a strategic level. The promises the Government makes on strategic planning are not met in the bill, because when one reads the fine print it is almost all discretionary. This bill should not proceed past the second reading.
The Greens, of course, will engage in the amendment process. But on the whole, this bill takes the State back decades.