Introduction
The following analysis demonstrates why the draft ACT Planning Bill is so retrogressive that it needs to be withdrawn and the ACT Government appoint an independent body to review the ACT planning processes and come up with an improved process that includes the necessary checks and balances to:
1. Avoid one entity or body, especially the Chief Planning Officer and Planning Minister wielding too much power;
2. Help reduce mistakes and prevent improper behavior in ACT Government entities;
3. Ensure input from all relevant entities in a timely and appropriate way;
4. Ensure adequate and timely consultation with community groups.
It also highlights the concerns of the ACT community that the Chief Planning Officer and Planning Minister be independent of partisan (developer) interests and the need for the Territory planning authority to be adequately staffed. It recommends this be considered in parallel with the review of the ACT planning processes referred to above, preferably by the same independent body.
Analysis
The Bill proposes a dramatic reduction in the already inadequate checks and balances currently in place in the ACT Planning processes. The consequences flowing from the Bill will be increased mistakes, greater capacity for improper behavior, and increased centralization of power.
This is because the Bill largely leaves the current ACT planning processes in place while proposing to increase the already considerable powers and discretionary authority of the Chief Planning Officer. Secondly, it increases the powers of the Planning Minister while decreasing the capacity of the community to input into development proposals.
The Bill erroneously states the Act will promote and facilitate ecologically sustainable development because it is limited to “development that is consistent with planning strategies and policies”. An important aspect being:
“a sustainable and resilient environment that is planned, designed and developed for a net-zero gas future using integrated mitigation and adaption practices… focused on adapting to the effects of climate change, including through mitigating the effects of urban heat, managing water supplies and achieving energy efficient urban environment”.
The reality is the continued ACT Government high-density development strategy forces people to use air conditioners exuding hot air, producing a vicious cycle. Sydney suburbs have already reached temperatures of over 50 degrees (Penrith: Temperatures hit over 50C last summer | news.com.au — Australia’s leading news site) with fatal consequences for some.
Another concern is Section 22 (2) which further extends the power of the development arm of the ACT because it “enables the territory planning authority to delegate the function of granting leases on behalf of the Executive to the following:
(a) the city renewal authority;
(b) the suburban land agency”.
These two bodies are responsible for major developments, so giving them the authority to grant leases is a recipe for disaster. They could maximise returns by simply reducing the terms and conditions of the leases granted to purchasers. The record of their predecessor, the ACT Land Development Agency, amply demonstrates the potential to step outside boundaries.
Other major concerns are:
a. Section 46 which specifies “the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan”. It does not include the territory planning authority.
b. Section 100 in proposed legislation given sub-section (10) states “This section is intended only as a guide to readers”.
c. Section 101 does not specify the entity to determine “whether a development proposal is likely to have a significant adverse environmental impact”.
d. Sections 109-138 give the Territory planning authority an extraordinary wide range of powers all vested in the ‘chief planner”.
Section 185 further removes critical checks and balances by authorizing the Territory planning authority’s decision-maker to give development approval contrary to entity advice if the decision-maker is “satisfied that acting contrary to the advice will significantly improve the planning outcome to be achieved.” Apart from usurping specialist skills such as environmental conservation and heritage, any decision made without all appropriate skilled input could very well defeat any intent to achieve best planning outcomes.
A more rational approach would be to adopt a computerized tracking system for development applications that automatically records whether or not entities have responded within an agreed upon timeframe – if not, the relevant Chief Executive is required to explain why to the next meeting of ACT Chief Executives. This worked well when I worked in ACT Government and I understand suitable software can now be purchased for as little as $500.
Also, contrary to the proposed Section 185, it is essential that the Act include requirements for developments to take into account all relevant considerations including progressing the ACT Climate Change Strategy 2019-2025 - ACT Climate Change Strategy to 2019 to 2025 - Summary – which outlines actions to meet the ACT’s legislated emissions reduction target of 50–60% (below 1990 levels) by 2025 and establishes a pathway for achieving net zero emissions by 2045.
The piece-de-resistance in the Bill is, in respect of a matter that is ‘protected by the Commonwealth’, if the Commonwealth Minister does not give the decision-maker advice about the proposed decision within 10 working days…the decision-maker may approve the application’. Apart from the absurdly short time frame unilaterally imposed on a Commonwealth Minister, the Bill clearly fails to recognize that the Government for the Australian Capital Territory is a junior entity subject to Commonwealth legislation; the Australian Capital Territory (Self-Government) Act 1988.
To repeat, the proposed Act fails to achieve any improvement of the ACT planning processes, which it largely leaves in place, but simply increases the already considerable powers and discretionary authority of the Chief Planning Officer. Secondly, it increases the powers of the Planning Minister while decreasing the capacity of the community to input into development proposals.
Also, I support former senior ACTPLA Executive Richard Johnson who posits that any new processes must be based on the Gunning Principles applicable to public consultation in the UK, being:
1. Consultation must be at a time when proposals are still at a formative stage;
2. Sufficient reasons must be put forward for any proposal to permit “intelligent consideration” and response;
3. Adequate time is given for consideration and response; and
4. The product of consultation is conscientiously taken into account by the decision maker(s).
Recommendations
As stated above, I recommend that the ACT Government cancel this Bill and appoint an independent body to review the ACT planning processes and come up with an improved process that includes the necessary checks and balances to:
1. Avoid one entity or body, especially the Chief Planning Officer and Planning Minister wielding too much power;
2. Help reduce mistakes and prevent improper behavior in ACT Government entities;
3. Ensure input from all relevant entities in a timely and appropriate way;
4. Ensure adequate and timely consultation with community groups.
Finally, I consider this will only work if the Chief Planning Officer and Planning Minister have the confidence of the ACT community, are seen to be independent of partisan (developer)interests and the Territory planning authority is adequately staffed. Otherwise, the whole exercise will be, to quote noted activist Charles Perkins, “simply talking for practice”. This should be considered in parallel with a review of the ACT planning processes referred to above, preferably by the same independent body.
Prepared by: Albert Oberdorf
Canberra, ACT
May2022