Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.
5. Appeals and Enforcement – letting in the light, or shutting out accountability?
A final aspect of the planning White Paper goes to the heart of access to justice under the new system – rights to appeal the merits of a decision, and rights to challenge legal errors and breaches through ‘civil enforcement’. These will be critical if the government is to make good on its State Plan goal to ‘Restore confidence and integrity in the planning system’.
Developers’ rights to review and appeal decisions will expand under the White Paper proposals, including against council refusals of ‘spot rezoning’ applications, and where councils fail to approve code-based development applications within 25 days (see Thursday’s post).
On the other hand, there will be no community appeal rights if a code-based development is approved that exceeds agreed criteria (relying instead on limited consultation rights). Community objectors will also continue to lose merit appeal rights against major projects, where the Planning Assessment Commission holds a public hearing – which can be requested at the Planning Minister’s discretion (under the Planning Administration Bill). In other words, the new system entrenches the inequity between developer appeals and community rights to independent accountability through the courts.
As ICAC noted in its 2012 submission to the planning review, ‘The limited availability of third party appeal rights under the EP&A Act means that an important check on executive government is absent.’ Less than 1% of local council decisions are appealed on the merits, and Planning Department statistics shows that 99 out of 100 of these appeals are brought by developers, not community members.
But the benefit of third-party appeal rights goes beyond the few cases where they are exercised. The very existence of such rights puts decision-makers on notice, and leads to better decisions and greater community confidence. Further, as ICAC puts it: ‘The extension of third party merit appeals acts as a disincentive for corrupt decision-making by consent authorities.’
On civil enforcement, consultations have revealed widespread support for ‘open standing’ in the planning system. This allows anyone to enforce a breach of the law in court (as long as they can afford it). The White Paper proposes to retain open standing. However, the draft Planning Bill could seriously undermine this ‘iconic right’, by curtailing the public’s ability to challenge a range of legal errors or breaches in court. This includes fundamental areas such as community participation (see Tuesday’s post) and strategic plans. The Bill also appears to restrict certain third party enforcement rights under State pollution laws, but its full extent is unclear. For example, under these laws, EDO NSW recently assisted a community group to challenge pollution of the George’s River, in breach of the company’s pollution licence. We have raised these concerns with the Planning Department, and are continuing to seek changes that will maintain access to justice. The full force and spirit of open standing rights must be retained if these reforms are to have legitimacy.
Overall, the imbalance of review and appeal rights between developers and community members will continue to limit community confidence in the system. In our view, the draft legislation must be amended to restore accountability and put the community on an equitable footing when it comes to appeal, review and civil enforcement rights.
When we started this series, there were six weeks left for consultations on the NSW Planning White Paper and draft legislation. Now there are five! Time is short on the community’s chance to shape the scaffolding of the new planning system. But the Government already has nearly 1000 community and local council submissions to its 2012 Green Paper, and many of the calls for a more balanced and sustainable system – socially, environmentally and economically – remain unanswered.
EDO NSW believes fundamental changes are needed to chart a better course for the planning laws. Five major improvements would give much greater confidence that the Government has listened to the community, and is serious about sustainable paths to environmental planning and economic development:
- Place ESD at the apex of the planning system, and apply its principles under law.
- Boost the status of the Community Participation Charter to make sure it’s binding, and ensure its principles aim high.
- Integrate environmental outcomes and sustainability requirements upfront in the strategic planning principles, including cumulative impact considerations and climate change readiness. Public participation and environmental outcomes must flow through the cascade of strategic plans.
- Set and communicate clearer limits, safeguards and design incentives around code-based development assessment.
- Restore accountability by putting the community on an equitable footing for appeal, review and civil enforcement rights (in areas like community participation, developments that significantly exceed set standards, and projects with the biggest likely impacts).
These changes would help to build a positive legacy for the new planning laws, with shared benefits for communities, businesses, governments and the environment – now and in the decades to come.
*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.