Environmental Planning and Assessment Bill 2017
15th November 2017
Mr GREG PIPER ( Lake Macquarie ) ( 11:21): I join in debate on the Environmental Planning and Assessment Amendment Bill 2017. Like other members who participate in this debate, I may have some differences of opinion and concerns. Notwithstanding that, I do not intend to vote against the bill. I acknowledge that planning is a very difficult area in which to work. The member for Heffron referred to the principal Act, the Environmental Planning and Assessment Act 1979, and I agree with him that it was very worthy legislation and that it was very well constructed. Many amendments were made to the original Act through until the 1980s, and it is well recognised as a great document for building local communities. But some time after that, things started to go awry, possibly due to the myriad amendments made to it. The principal Act carried a huge weight of amendments and that made consideration of its provisions very complex. The end result is that lay practitioners had very little chance of understanding how the bill should be applied to their communities.
I acknowledge the efforts made by the former planning Minister, Mr Hazzard, to address that issue. He tried to go back to basics and to rewrite the planning Act as a modern Act for New South Wales. He made a genuine attempt to streamline the legislation and engaged very well with the community, residents and the development industry. Minister Hazzard was earnest in what he was trying to achieve. However, in planning, like so many other areas, it is difficult to achieve consensus and some areas prove to be so controversial that they undo all the good work. I will not deal at length with the broad terms of the bill. Rather, I will raise one particular issue that I have discussed with the Minister's office. During my 21 years in local government, and perhaps more particularly during my eight years as the Mayor of the City of Lake Macquarie, I had personal experience of the issue. At that time Lake Macquarie regularly over consecutive years had the second-highest number of development applications in the State. I join in this debate having had not insignificant experience of dealing with development applications.
One of the most galling issues for a council, but particularly for local communities, was dealing with somewhat unprincipled developers who gamed the development consent process and often built outside the scope of their development consents. Those developers did so knowing full well that they would incur the wrath of a fairly weak system and that applicable penalties for ultra vires developments generally would be modest. Many developers exploited the loopholes in the process to do whatever they liked, knowing that, despite a minor penalty, they would achieve their overall goal of deriving substantial profit from the development. That needs to stop. The draft consultation bill that was promulgated prior to the introduction of the bill before the House included draft condition 15 relating to section 96 (3) (a) that would address those exploitative practices. The draft condition stated: "To insert after section 96 (3)—3A. If after the grant of development consent any part of the development is carried out in contravention of the consent, the consent may not be modified", except under subsection (1) in order to authorise that part of the development. I understand that subsection (1) relates to minor changes that are inconsequential in the context of the bill.
Retention of that draft condition would have disabused the apparently widely held notion in some parts of the development industry that developers can game the system, accept the fine as a slap on the wrist, and move on because they will benefit greatly in the long run. I have heard that the draft condition was a well-considered inclusion. I know that it was supported. I have spoken to people who are currently engaged in the planning industry as well as to those who closely examined the condition and commented on it in their submissions. All those who were aware of the draft condition assumed that it would be part of the bill before the House and therefore did not comment on it, despite strongly supporting its inclusion in the amending bill. Unfortunately, that condition has been removed from the bill. Having spoken to the Minister's staff, I have been advised that there are a number of reasons for that. I am told that some councils were concerned about inclusion of that condition in the legislation. Those councils said that the condition effectively would require the demolition of works that had been carried out illegally because those developments cannot retrospectively be approved. I am also told that the councils want to work with developers to introduce other modifications that might ameliorate the impact of developments, and those modifications relate to privacy, overshadowing and matters of that nature. My experience tells me that the chance of that happening is very slight.
There is no doubt that retention of the draft condition in the legislation before the House will create problems. If this bill becomes law and includes the draft condition, councils will be required to take substantial action to order the demolition of works. However, because the industry, having experience of the condition's effect, would very quickly change its tune and would discontinue the present exploitative practice, I am quite sure that that would be necessary for only a very short period. I believe this practice could continue and I understand, as a result of speaking to the Minister's staff this morning, that there will be provisions in the regulation to give councils greater capacity to take strong action, including increasing fines to a point that will remove the incentive for developers to breach the provisions because it would reduce or even remove any profit the developer may make. I say to the Government that this is well and good, but we are still dealing with a diverse range of councils around the State—although their number has decreased as a result of amalgamations—and not all councils are created equal.
Councils are limited by the different capacities of elected members and different capabilities of development planners to scrutinise and to deal with planning issues. I am therefore concerned that there will be opportunities for inappropriate or incompetent action in dealing with planning issues or even inaction as a result of a lack of resources. As we know from previous actions that have been tested before the Independent Commission Against Corruption [ICAC], some developers exert corrupt influences over councils in attempting to get modifications to planning approvals in inappropriate ways. I asked the Minister's staff about this concern. I understand they consulted the Minister about whether this provision could be modified, and I sought advice on bringing forward an amendment to this provision, but it is clear that that amendment would not be supported. [Extension of time]
We in this Parliament have seen too many instances of undue influence exerted on councils. This legislation could have expunged that opportunity, but instead we are playing a very dangerous game by giving councils an opportunity to deal with this aspect of planning. Yes, there could be some examples of that leading to a better outcome in the short term, but in my view in the long term if this provision were amended it could remove that business model, meaning we would not have to deal with it in the future. Instead, communities will suffer from unscrupulous developers taking advantage of the lack of oversight. I will not move an amendment, but I hope that the Government will reconsider this provision. I believe the provision should be revisited at the first available opportunity and a subsequent amendment drafted to prevent unscrupulous developers from having their way.
This legislation represents a lost opportunity, though there are some good provisions within it. It is a planning bill, so it will not please everybody. But it must include provisions to do the right thing by our communities in the provision of residential and work spaces. These things drive a sustainable community and ensure the provision of communities that people want to live in, rather than have to live in. This Parliament is exercised way too often in dealing with inappropriate or questionable actions by developers. I ask the Minister seriously to reconsider that provision, because I think the wrong path has been taken.