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How the planning system stifles debate - 17 March 2006

In NSW bureaucrats have too much power to make crucial decisions on development, writes Robert Stokes in Sydney Morning Herald March 17 2006.

'THE long way is always the short way" was the cryptic advice I received as a law clerk. Yet it points to the importance of providing a process for public input into planning and development proposals.
Public participation is a fundamental element of good planning. Theorists and practitioners point to its role in achieving better results as local knowledge and interests help planners adapt new developments to the neighbourhood. Even where such interests are rejected, at least the public can feel confident they have received a hearing.
The right for the public to participate in planning was only won after a long and hard fight. Until the 1970s, planning was left to bureaucrats. There was no easy way for communities to support or fight proposals that would permanently alter their local area. It was only after community action like the green bans at Kellys Bush and The Rocks that State Parliament was forced to respond, providing "increased opportunities for public involvement and participation" as a bedrock objective of the Environmental Planning and Assessment Act 1979.
Yet, during the past decade the State Government has progressively gutted opportunities for public participation from the planning process. In 1998 the planning system was "streamlined" so that neighbours would have no right to respond, or even be notified, of developments labelled "local" or "complying". Planning instruments enforcing medium-density developments were applied over neighbourhood controls designed by and for local communities.
Councillors were put in the farcical position of having to apply standards imposed in these state policies, even though many were elected on platforms that contradicted blanket urban consolidation. The result was an escalation in litigation, and a concerted attack on the Land and Environment Court, which had to interpret and enforce complex and uncertain policies.
Last year the Government decided to further erode public participation by giving itself the power to declare certain developments "critical infrastructure" or "state significant", where public participation is either eliminated or limited. Appeals to the Land and Environment Court on critical infrastructure proposals were abolished. Even public comment on the amending legislation was muzzled. The original 1979 act only proceeded after six months of public comment. The 1998 changes followed three months of comment. But the 2005 bill was introduced without any public input.
Now State Parliament is discussing whether to give the Minister for Planning the power to unilaterally impose an administrator or a panel to take over all the planning functions of a council. These technocrats will be able to make plans or determine development applications in place of councillors elected by the community.
In addition, the minister will be able to make development control plans that provide guidance on how neighbourhoods should grow and change. Previously, this was a function of local councils in co-operation with the community. It was the only level of planning not subject to ministerial control or veto. No longer, it seems.
The Government still ostensibly recognises the importance of public participation. In the 2001 PlanFirst reforms "the existence of formal opportunities for public participation" in planning was lauded as one of the strengths of the NSW system. But by failing to reconcile its rhetoric with reality, the Government will only exacerbate conflicts in the system, as residents realise meaningful opportunities to participate in decisions that affect their environment are illusory.
The Government says this is all about moving from a "process-driven approach to an outcomes-focused service". But this reveals a fundamental misunderstanding. Planning is process. It is the process that produces good outcomes, not the other way around. As Dwight Eisenhower commented, "plans are nothing, planning is everything".

Robert Stokes is a senior lecturer in law at Macquarie University and is vice-president of the NSW Young Lawyers.