The failed NSW planning reform

• First, the legislation should require all development to require consent. Instead of imposing control by detailed individual instruments of subordinate legislation, controls would merely be guides to and fetters on the discretion of governments to grant consent as well as identifying those developments for which consent can be assumed. This change in the design of the legislation would greatly reduce the role of lawyers and simplify the processes.
• Second, the Minister's objective for a parcel based digital record of controls must be central to their formatting, with the aim of maximising the opportunities for a reduction in unnecessary control and an increase in opportunities for contextual designs.

There are other theoretical issues to consider when building the proposals for reform from first principles:

• Third party merit appeals can lead to uncertainty, but there are advantages. Rather than administrators being obsessively concerned that their decisions may be declared illegal for some administrative error, with the expensive consequence that can follow, it is better to provide a relatively simple merit appeal that leads to a final decision. And, as the ICAC has said, the possibility of third party merit appeals is an effective inhibitor of corruption.
• Regardless of who initiates a change there need be only one administrative process for making new development controls and a one process for applying for consent. The routes taken may differ somewhat depending on the nature of the change or proposal, but the fundamentals remain the same. A single process reduces complexity and the risk of error and allows the bundling of applications under other control systems into the one process (e.g., Local Government Act 1993).

Conclusion

The whole package of the White Paper and the Bills must be withdrawn. The proposals are incompetent and will not lead to a more effective, efficient and transparent system for regulating development rights and obligations.

A new effort must be made to put forward a new set of reform proposals.

They should:

• Make a clear distinction between governments undertaking strategic planning, which is an executive function of good government, and governments administrating a legislated system of development rights and obligations.
• Put the Minister's objective of a parcel formatted digital cadastral data base of development rights and obligations at the centre of the proposals.
• Consider the option of imposing control by the Act itself rather than by separate subordinate legal instruments.
• Greatly simplify the administrative process for amending the rights and obligations on the register and the process of applying for development approval.
• Include wider opportunities for third party merit appeals as part of a package of provisions that comply with ICAC principles of corruption prevention.

The resultant legislative package should be short and, being written in plain English, should be clearly understandable, avoiding the need to consult lawyers to find out what is going on.