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Current location: Home > Issues > Planning & Development > Discussion Paper Titled “improving The Nsw Planning System”

Friday, 8 February 2008

Planning Reforms
Department of Planning
GPO Box 39
Sydney NSW 2001

Discussion Paper titled “Improving the NSW Planning System”

The fundamental principles of any planning reform must promote sustainability and design excellence, and the right of local communities to have a say in the future of their living environment. While there is scope for reducing current complexities in the planning process, it should not be at the expense of public participation and sound planning procedures.

When the Environmental Planning and Assessment Act 1979 (EP&A Act) was introduced, it was heralded as a breakthrough for putting public involvement at the forefront of planning. At the time there was widespread dissatisfaction that much development was not in the public interest and the character and heritage of local neighbourhoods was being eroded. It is a basic democratic right that communities are not relegated to passive onlookers while their local neighbourhood rapidly changes. Grass roots planning involvement can help ensure that neighbourhoods remain liveable and sustainable.

The threat of global warming leading to climate change brings serious challenges for all levels of governments. Unless sustainability is at the centre of our planning system, we are failing our present and future generations. Protection of the environment is the only growth strategy in the long-term.

I am very concerned that the focus of this so-called reform is to fast-track development for developers rather than promote sustainable and liveable neighbourhoods.

While most Councils are performing very well, with timely assessments that promote building excellence and environmental protection, the discussion paper justifies by-passing local planning processes using negative generalisations and selective data on a few under-resourced or under-performing areas. Local Government in general is blamed for delays and the discussion paper fails to suggest ways to strengthen the performance ability of the small minority of Councils that under-perform, or address the impacts of poor quality or non-compliant development proposals.

Many of the problems are not caused by the planning system per se. The discussion paper fails to address these broader concerns: failure of State authorities to respond within acceptable timeframes, party politicking in some councils, the restricted resource base of local government and the impact of ever increasing cost shifting, loss of planning staff to the private sector, and the adequacy of current education and training process.

It is not reasonable or effective to attempt to improve efficiency and confidence in the planning system by reducing Councils’ and the community’s role in the urban environment by reducing transparency and conflict of interest protection.

Private Certification

I strongly oppose extension of the private certification system to include development assessment. Since private building certification was introduced it has failed to ensure public protection. It is a betrayal of consumer protection to allow developers to select and pay the person who checks whether a development complies with council conditions and building standards. Contrary to claims that private certification improves efficiency, the inherent conflict of interest has delayed many developments because Councils have had to require more detailed information during assessment, which is time consuming and expensive for all parties.

While I support some of the measures proposed to reduce the conflict of interest, I believe the private certification system is inherently unworkable and I agree with the Local Government and Shires Associations that these measures are band-aids and could offset any reduction in red tape claimed. I support the calls for construction certificates to be provided to Councils so that they can issue the detailed approval, relying on the correctness of the supplied certificate.

I oppose extension of private certification as a recipe for degrading the built environment and contrary to conflict of interest principles.

State-wide codes for “exempt” and “complying” development

I strongly oppose the indiscriminate expansion in the use of state-wide compliance codes. Local councils need the flexibility to develop provisions appropriate for local circumstances. A “one size fits all” model is inappropriate given different areas have different environmental and heritage sensitivities and varying community expectations. As an inner city representative, constituents frequently tell me they live where they do because they like the character and feel that is unique to an area.

As an inner city representative I am very aware that minor building work can have significant impacts in densely populated areas.

Proposed planning bodies and panels

I have consistently opposed Part 3A of the EP&A Act, which gave the Planning Minister undue and extraordinary discretion over environmental assessment, criteria for approval, and extent of public input. The ability to take over projects assessed by democratically elected councils with little or no planning justification has diminished proper planning processes. The lack of transparency creates an unacceptable perception and risk of corruption and undue influence, particularly given that developers are major donors to political parties.

While delegating Part 3A decisions to a Planning Assessment Commission (PAC) could remove some of the perceived risks, the process must be clear and transparent so that the Minister is not able to select which developments are controlled at the Ministerial level and which are delegated otherwise corruption risks remain. The PAC must be subject to the same accountability measures as Local Government with strong mandatory processes for environmental assessment and community consultation.

Proposed panels aim to depoliticise the planning process; however, I am very concerned about the accountability of these proposed panels. Councillors are directly accountable to the people they serve, the public vote for them, they must declare pecuniary and non-pecuniary interests before assessing developments, and decisions are made in public. It is doubtful that the same level of accountability and transparency can be achieved if unelected and largely unknown panels are responsible for planning processes and decisions. I am concerned that the outcome will be greater bureaucracy, reduced transparency and increased complexity.

It cannot be assumed that the CSPC model would readily transfer to other regions in the form of Joint Regional Planning Panels (JRPP). The City of Sydney central business district is unique, hundreds of thousands of people visit the area everyday and major development projects are a regular occurrence.

The Local Government and Shires Associations are very concerned about the removal of local planning through proposed JRPPs, which they say will reduce public participation, undermine local decision making and accountability, increase bureaucracy and complexity, and increase councils’ costs. I share their concern and urge the Department of Planning to further consult with Local Government on the proposal for JRPPs.

State Government interference in local government responsibilities, possibly because of the lack of constitutional recognition for local government, is most prevalent in development matters. The outcome is routinely to bypass democracy, elected representatives and the community and reduce transparency and probity.

Timeframe for proposed changes

I am very concerned about the planned timing to implement changes. The discussion paper includes 95 proposals, which lack detail and require further development. The plan to have legislation ready for Parliament by the middle of the year is unreasonable and makes a farce of the consultation process. Local Government should play a major co-operative role in developing genuine planning reforms.

I strongly recommend that proposed timeframes be amended to allow the Department of Planning to work closely with Local Government in identifying effective and necessary reforms.

The toughest challenge governments face is creating liveable places that are sustainable in the face of rising population and global warming. Fast-tracking development should not be given priority over community participation and challenging environmental imperatives.

Strata Management Reform

Constituents routinely contact me concerned about strata management. The Sydney electorate is the most densely populated electorate in NSW, population has increased dramatically over the last 10 years and growth is continuing. The vast majority of new residential developments in this area are multi-unit with Australian Bureau of Statistics figures showing building approvals for higher density apartments rapidly increasing.

While past reform has resulted in some improvements, apartment owners remain concerned about domination of developers in management of their buildings, particularly with regard to large multi-unit developments. Strata reform proposals in the Discussion Paper have been previously raised during the review of Fair Trading legislation. While the recommendations are outside the usual scope of the NSW planning system, they address long-standing problems.

Executive Committees

Executive Committees, although elected by the Owners Corporation as their representatives, can possess a great deal of power. The decisions they make significantly affect all owners/residents, and conflicts frequently arise. The power of an executive committee is particularly significant in large multi-unit developments with hundreds of residents and multi-million dollar budgets.

There are numerous reports that developers are able to control Executive Committees and then avoid detection and accountability for defective building work.

I strongly support proposals to require Executive Committee candidates to disclose any connection they have with the developer, builder or building caretaker/manager. It is vital that Executive Committee elections are transparent with owners able to determine the vested interests of candidates to make informed decisions. I recommend tough penalties for candidates who fail to disclose their connections to ensure it acts as an adequate deterrent.

Developers should not be able to block Executive Committee decisions because they own more than a third of aggregate unit entitlements. I support in principle the use of a set number or percentage of owners to sign a notice opposing committee decisions. It may be appropriate for provisions to differ depending on the number of lots in a development.

Building Managers/Managing Agents

Allowing developers to select building managers creates a conflict of interest. The Developer may select a manager with whom there is an ongoing relationship. This can create a situation where the manager, for example, does not assist in litigation against the developer if there are construction faults or breaches of building standards.

While it may be necessary for a developer to engage a building manager for a newly established strata scheme, such management contracts need to be limited to a short period of time and I support the proposal to end building manager contracts on the date of the first annual general meeting.

The Managing Agent industry also needs to be regulated. Constituents tell me that it is difficult to end a management contract if owners are unhappy with their agent. They say however that it is difficult to select a new Managing Agent because there is little effective competition. Residents have claimed that Managing Agents can collude to set their pricing structures, and there is little transparency about how they charge. Regulation should guarantee basic levels of service for basic fees; increase financial accountability; prohibit commissions that look like kickbacks; and prevent collusion in fee setting.

I also recommend reduced contract periods because owners may be inclined to reinstate an existing developer initiated contract at the first general meeting to ensure continued service delivery.

Owners Corporations

The ongoing control and influence of developers in an Owners Corporation is a major concern raised with me by constituents who are owner-occupiers in new residential developments.

I strongly support proposals to:

  Clarify that developers cannot control Owners Corporations during the initial period but that each new owner automatically becomes a member;

  Limit the number of proxy votes one person can have;

  Restrict mortgagee priority votes on action for defective building work where the mortgagee is the developer;

  Prevent developers from using proxy votes to vote against lodging a complaint about defective work to the Office of Fair Trading;

  Ban the inclusion of proxy votes and power of attorney in sale contracts;

  Allow Office of Fair Trading inspectors to enter common property at the invitation of an individual owner.

Yours sincerely

Clover Moore
Member for Sydney

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