Posted on March 27, 2012 by

ICAC and the Planning Review

In response to ‘The Way Ahead for Planning in NSW? Issues Paper of the NSW Planning System Review’: (December 2011) (Review), the Independent Commission Against Corruption (ICAC) has prepared a submission entitled ‘Anti- Corruption Safeguards and the Planning System’, February, 2012 (Submission).

The Submission presents six key corruption safeguards it wants integrated into the NSW planning system, encompassed in 16 separate recommendations.

Safeguard One: Certainty

While recognising the advantages of ‘flexibility’ in the planning regime, the Submission criticises SEPP 1 objections and Ministerial discretion under the now repealed Part 3A of the Environmental Planning & Assessment Act 1979 as being too flexible and open to potential corruption.

The Submission recommends ‘that the NSW Government ensures that discretionary planning decisions are made subject to mandated sets of criteria that are robust and objective’. (emphasis added) (Recommendation One).

• Certainly in draft instruments

When making planning instruments, the Submission also recommends mandatory consideration of major policy documents such as the Metro Strategy and the Lower Hunter Regional Strategy.  The Submission states that while enormous work can be done preparing such strategies, their inclusion in LEPs is a discretionary matter only, unless the Minister directs otherwise (s117 of the Act).

• Certainty in the Quality of Decision Makers

While recognising that Councils need not employ planners with a town planning degree, the Report recommends a variety of continuing professional development for government planning practitioners.

Safeguard Two: Balancing Competing Interests

The Submission highlights the conflict between two main objectives: Planning laws consistently emphasise the need for “ecologically sustainable development” (Submission, page 13, quoting the Review).  Yet time and again Minsters of various departments, especially those utilising the former Part 3A, quote the need for “jobs and investment”.

Recommendations 6 states that planning legislation should “articulate its objectives and provide guidance on priorities” while Recommendation 7 calls for “adequate opportunities for competing public interests to be considered.

Safeguard Three: Ensuring Transparency

The Submission highlights the conflict occurring when the Minister determines a matter contrary to the advice she or he receives from the Department. The Submission cites section 352 of the Local Government Act 1993 (LG Act), which provides that Council staff are not subject to direction by councillors on the content of their advice or recommendations.

The Submission does not make any recommendation about how Councils should deal with this situation bit it does recommend there be a ‘protocol’ when the Planning Minster determines a matter counter to the Department’s advice.

Safeguard Four: Reducing Complexity

Citing ICAC’s own inquiry into the Quattro development at Wollongong in 2008, the Submission notes that there were 30 different plans, policies and other documents legally binding upon the development of a single parcel of land in that instance.

Giving examples of SEPP (Affordable Rental Housing) and SEPP (Infrastructure), the Submission also underlines the overriding impact of contradictory SEPPs and Policies which may make legal what is otherwise impermissible on a particular lot.

The Submission seeks the rationalisation of the number of planning instruments which apply to any individual lot.

Safeguard Five: Meaningful Community Participation and Consultation

Five of the Submission’s 16 recommendations deal with the need to seek public input, not only at the point of an individual DA, but prior to the release of a major strategic planning instrument.  It goes even further to give statutory backing to community consultation before the adoption of draft Local Environmental Plans.

The Submission recommends that when the Government decides upon the preparation of State Significant planning instruments, but chooses not to seek public consultation, reasons for why public input was not allowed must be given.

Safeguard Six: Expanding the Scope of Third Party Merit Appeals

Although section 124 of the Act gives wide third party appeal rights the Submission recommends that these be made even wider, to include any developments that are ‘significant and controversial; (where they) represent a significant departure from existing development standards; and where the subject matter is a voluntary planning agreement’.

Voluntary Planning Agreements (VPA’s)

The Submission urges the Government to introduce changes to VPA’s that are consistent with those proposed in the yet to commence Schedule 3 of the Environmental Planning & Assessment Amendment Act 2008 (Recommendation 4).

The ICAC would like to see a requirement that the value which a developer can derive from a VPA is proportionate to the profit which the developer may derive from it.

There is also the suggestion, in the very last recommendation, that there should be a third party appeal right against a development the subject of a VPA.  Given the wide ranging power of section 123 of the Environmental Planning & Assessment Act 1979 it is difficult to see how more wide ranging the third party rights could be, unless the ICAC is suggesting that objectors could appeal the VPA itself.

Conclusion

The ICAC has a statutory responsibility to advise Government on practices and procedures which will reduce corruption (Independent Commission Against Corruption Act 1988 section 13). With more than 30 reports exposing likely corruption since the Environmental Planning & Assessment Act 1979 came into effect on 1 November 1980, and complaints about development applications and land rezoning constituting the second highest number of public complaints handled by the ICAC (Submission, page 5), the ICAC submission is likely to carry great weight when the government comes to legislate on the Review’s recommendations.