Reforming the NSW planning legislation: lessons from an Australasian comparison? Dr Robyn Bartel

Transcription

1 Reforming the NSW planning legislation: lessons from an Australasian comparison? Dr Robyn Bartel

2 Reform options

3 ? What should we do?

4 ? What do we want?

5 ? What do we want?

6 What do we want?

7 ? What do we want?

8 ? What do we want?

9 ? What do we need?

10 ? What do we need?

11 ? What do we need?

12 ? What do we need?

13 The early years of the EPAA The New South Wales planning system was visionary when in 1979 it introduced public participation and consideration of environmental impacts as core principles in land use decision-making. This in response to a planning system which was deficient in several aspects And now?

14 Recent years of the EPAA In recent years these early gains have been compromised and environmental concerns have been increasingly treated as separate, and subordinate to, economic growth.

15 Recommendations from significant others An alternative perspective, favouring more integrated and regionalized approaches, has been supported by the NSW Land and Environment Court, the NSW Parliamentary Inquiry, the Productivity Commission, NSW EDO and COAG.

16 Recommendations from significant others NSW Land and Environment Court, the climate cases judicial reviews - In the Anvil Hill case Justice Pain noted Numerous decisions of this Court have confirmed the importance of ESD principles for decision makers making decisions under legislation which adopts ESD principles (para 109).

17 Recommendations from significant others NSW Land and Environment Court, the climate cases judicial review - In Walker: Pain J *in Gray the Anvil Hill Case] held that although the principles of ESD were not expressly referred to in Part 3A, the Minister as well as the Director-General, who is subject to the Minister s direction, were obliged to take into account the public interest, which includes ESD, when operating under Part 3A. (Biscoe J, para 115)

18 Recommendations from significant others In Walker, Justice Biscoe interpreted the legislation and case law slightly differently and decided that the reference to public interest in clause 8B of the EPA Regulation 2000 governing Part 3A included ESD, which included climate change: Climate change presents a risk to the survival of the human race and other species. Consequently, it is, a deadly serious issue. It has been increasingly under public scrutiny for some years. No doubt that is because of global scientific support for the existence and risks of climate change and its anthropogenic causes. Climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal plain development such as the subject project (Biscoe J, para 161).

19 Recommendations from significant others Because of the significance of this environmental issue to the public interest, failure to consider it rendered the approval invalid: In my opinion, having regard to the subject matter, scope and purpose of the EPA Act and the gravity of the well-known potential consequences of climate change, in circumstances where neither the Director-General's report nor any other document before the Minister appeared to have considered whether climate change flood risk was relevant to this flood constrained coastal plain project, the Minister was under an implied obligation to consider whether it was relevant and, if so, to take it into consideration when deciding whether to approve the concept plan. The Minister did not discharge that function. (Biscoe J, para 166).

20 Recommendations from significant others However the decision in Walker was appealed to the NSW Supreme Court, who decided that although in the particular statutory context of the development, the public interest was an implied mandatory consideration, this did not extend to consideration of ESD. Hodgson JA (with the agreement of Campbell JA but not Bell JA) recorded some ambivalence in his judgment: I do suggest that the principles of ESD are likely to come to be seen as so plainly an element of the public interest, in relation to most if not all decisions, that failure to consider them will become strong evidence of failure to consider the public interest and/or to act bona fide in the exercise of powers granted to the Minister, and thus become capable of avoiding decisions. (para 56)

21 Recommendations from significant others And further: I find it somewhat surprising and disturbing that the Director-General s report did not address these aspects of the principles of ESD, and that the Minister did not postpone his decision until he had a report that did so. (para 61).

22 Recommendations from significant others Court sees environmental and social concerns as inextricably interwoven. In Walker Justice Biscoe said that The goal of ESD is critical to the survival and well-being of the human race and other species. (para 46). Obviously EDO agrees. The Court has reconciled the opposing forces so that they run parallel (Hebbert, 2009: ). When there is an apparent tension, the court has sought to resolve the conflict by reframing and aligning the apparently dichotomous and conflicting.

23 Recommendations from significant others Productivity commission (2011) refers to objectives overload and the competition between objectives and this suggests that there are internal consistencies within planning policies which need to be resolved. Also needing to be resolved scale and governance issues local v centralist

24 Recommendations from significant others The 2009 Parliamentary Inquiry into the Planning System included a recommendation that the standard template may need to be reviewed, and that several templates may be required in order to reflect the different needs of metropolitan, rural and coastal local government areas. (NSW Parliament, 2009).

25 Recommendations from significant others The 2009 Inquiry into the NSW planning system found strong support for regional strategies and two of its recommendations concerned enhancing their development and implementation (NSW Parliament, 2009).

26 Recommendations from significant others The COAG reform agenda (2008: 3) explicitly advances the need for a cooperative, regional approach in the sustainable use of our natural resources.

27 Recommendations from significant others Reform of the current planning legislation may also be guided by the experience of other jurisdictions. The evaluation of planning across Australasia conducted for this study demonstrates that there are approaches which may be learnt from, as well as examples which perhaps are best avoided. Those which may be useful to emulate are elements of several State and New Zealand systems pertaining to planning scheme generation. Models to be avoided include those with limited appeal rights, like South and Western Australia.

28 Lessons from other jurisdictions Jurisdiction Principal Legislation Responsible Agency New South Wales Environmental Planning and Assessment Act 1979 Department of Planning and Infrastructure Victoria Planning and Environment Act 1987 Department of Planning and Community Development Queensland Sustainable Planning Act 2009 Department of Local Government and Planning South Australia Development Act 1993 Department of Planning and Local Government Western Australia Planning and Development Act 2005 Western Australian Planning Commission (WAPC) Tasmania Land Use Planning and Approvals Act 1993 Tasmanian Planning Commission (TPC) New Zealand Resource Management Act 1991 Ministry for the Environment

29 Lessons from other jurisdictions JURISDICTION Strengths NSW VIC Qld Wide merits appeal and judicial review availability (except for Major projects old Part 3A). Planning schemes must seek to further the objects of the Act and are produced with community consultation. Referral agencies have veto powers. Planning schemes are produced with community consultation. All powers conferred by Act must be exercised to further the purpose of the Act (s 4) and purposes of Act must be taken into account in decision making/approvals. Concurrence agencies have veto powers. Wide merits appeal and judicial review availability (except for Major projects).

30 Lessons from other jurisdictions JURISDICTION Strengths SA WA Tas NZealand Scope for local difference (no mandated state section in local plans). Planning schemes are produced with community consultation. Referral agencies have veto powers. Wide merits appeal and judicial review availability (except for Major projects). Referral agency powers (EPA) and EIA re local scheme development. Independent WAPC. Planning schemes must seek to further the objects of the Act and are produced with community consultation. Referral agency powers (EPA) and EIA re all categories. Plans are appealable and all plans must further the objects of the Act. Greater involvement by cognate agencies i.e. environment and conservation. Call-ins only for national significance (not state!) and then decided by independent body.

31 Lessons from other jurisdictions JURISDICTION WEAKNESSES NSW VIC Qld No EIA/consultation in development of local government plans. Lack of strategic and regional planning, consultation with other agencies, limited assessment and appeal rights for major projects, questionable independence of (old) PAC. Major projects are almost entirely in the hands of the Planning Minister. Limited judicial review. Potential for State development and housing needs to override planning provisions altogether.

32 Lessons from other jurisdictions JURISDICTION WEAKNESSES SA WA Tas NZealand Limited assessment and appeal rights for major projects. Major projects are almost entirely in the hands of the Planning Minister and the Parliament Risk of WAPC control. No third party merits appeals. Limited judicial review. Several types of major project exemptions. Limited judicial review. Limited judicial review.

33 What we already know Part 3A repealed and PAC/JRPP tweaked Basically major projects have now been recategorized into two classes - State significant development (SSD) and State significant infrastructure (SSI) (and critical SSI) SSI - to be decided by the Minister SSD - will come under Part 4 and to be decided by PAC/DPI officers (unless called in by the Minister under advice from the PAC). And a third class of regional developments to be determined by JRPPs

34 For the future? A more internally consistent planning framework, including strategic planning and a reignited commitment to ESD & more meaningful public participation, and to evidence-based policy, including lessons learned from other jurisdictions. And cherry pick from others public participation in plans? Appealable plans? One recommended pathway of reform to ensure that planning remains alert to what should be the core principles governing land use decisionmaking ESD, liveable communities and good governance.

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