The failed NSW planning reform

State Governments are always reviewing planning legislation. Legislation for development control always reflects a compromise between different interests. As the politics change, so one group will try to gain advantage, push for 'reform' and attempt to rebalance the existing compromise.

In recent years the development industry has been in the ascendency. Two themes have been pursued. Firstly, an increase in untrammeled ministerial power to grant spot rezonings, giving windfall gains to those able to access the minister. Secondly, the standardisation of controls to facilitate the provision of standard urban products such as detached houses, shopping centers and fast food outlets.

Neo-liberals have questioned why there should be planning controls at and why market demands should not be given a much freer hand. (Seldom do these proponents acknowledge that the land market is heavily distorted by massive tax and other subsidies, especially for home owners. Doing away with controls over time would result in most of Sydney's CBD being subdivided into residential strata units.)

The New South Wales Review

In NSW the new State Government launched a review of the Planning legislation soon after it was elected. Having encouraged the public to make submissions, the White Paper and draft Bills recently published have been widely condemned for a range of reasons including taking little notice of the submissions.

This article deals not with issues that have attracted most concerns, but with the reform package as competent piece of regulatory reform. I describes my reaction to a process which started well with the Minister's opening statement and has gone downhill from there. I will describe how the Minister's enlightened key test for success could have inspired a real reform of Australia's most complex and corruption-friendly planning control system and how the proposals put forward will, if enacted, leave us considerably worse off than we are now. I will conclude with suggestions of what should happen.

I was delighted with the Minister’s simple, revolutionary objective for the review two years ago. Minister Hazzard said “‘Wherever you are in the State, someone who wants to provide housing or someone who wants to protect their environment, should be able to press a few buttons and know exactly what was intended for that particular parcel of land and what can or cannot be done with it. An IT friendly system. A user friendly system.”

By acknowledging the reform potential of digital technology, at last, I thought, a Minister has recognised the critical element for achieving an effective, efficient and modern system for planning controls.

Digital technology has revolutionised the recording and availability of Torrens title information. A digital cadastral database allows title details to be interrogated online in the same way as the Minister wants planning control information to be interrogated. The lot boundaries are digitised and digital information is attached to each lot by the unique identifier of the lot number. Registration of a change to the details on title is achieved, not by filing paper documents, but by entering the changes into the central database.

Achieving the Minister’s Objective

To achieve the Minister’s objective, competent planning control legislation would:

• Set up a central authoritative cadastral database (the title system provides one).
• Translate the current multiple layers of paper based controls into a single set of integrated control information for each parcel on the database (Not just identify documents that might contain controls.)
• Require that any changes to that information must “explicitly amend” the controls applying to the relevant parcel.
• Necessarily recognise the database as the single record of statutory acknowledged development rights and obligations, and therefore:
  • Ensure that changes can be initiated by different levels of government, and avoid one cause of the layers of separate control documents that so complicate the current system.
  • Make a distinction between 'plans' and 'development controls', with the latter only being included in the database and ideally only containing words that do real development control work (i.e. positively or negatively affecting the value of land).

The database could also contain other information that influences the value of a parcel of land, such as the details of approvals and orders.

As with a Torrens title, the parcel record would be 'evidence to the world' of development rights and obligations applying to the parcel. As such, purchasers could not claim to have been misled as to the nature of those rights and obligations.