Hi. I had a go at pulling together the record of the NSW Labor Government on development in the Herald today – my thesis is that Carr could be the architect of his own downfall. As a political journalist, I’ve learned cynicism the hard way, but delving into the Carr government’s record on development since Cunningham has been a disheartening, sickening, and shocking experience.
Whether he’ll be called to account by the people in March remains to be seen, but the signs are there that Opposition leader John Brogden is ready to offer voters genuine choice on development policy in Sydney and on the coast for the first time in a long time.
Today my piece, a brilliant 1997 speech by Liberal MP for Hawkesbury, Kevin Rizzoli opposing Labor’s legislative ode to developers, and a fascinating 1999 piece from the archives which shows why Brogden is on the money on this issue and how Labor abuses voter concerns to manipulate their votes then betray them without qualm.
To end, another archive piece, Driving a Carr through the environment, which details Carr’s betrayal of the public interest, local communities, homebuyers and the environment in development policy and the resulting hegemony of developer interests in our State. The developer bias is so extreme that even when conditions are put on developments to accommodate community concerns, they are not monitored and are breached at will with impunity.
Disempowered, frustrated communities watching their quality of life being ripped apart by a government which condones effectively lawless developer behaviour will, in the end, be forced to do unthinkable things to be heard. Enter Cunningham. And it won’t end there.
NSW Labor’s self-destruct button moved to Victoria today, when the safe inner urban seat of Melbourne today became even harder for Labor to hold. Melbourne is the Greens’ most winnable seat due to voter outrage at Labor’s Kennettesque decision to build the Commonwealth Games athletes village on the Royal Park site rather than return it to the people for open space. An ALP councillor has just resigned to stand as an independent. Shades of Cunningham, again. I’m beginning to think we really are witnessing the beginnings of a split in the ALP. It will be fascinating to see how the Libs respond – will they not run an official candidate and put up an independent Lib to preference the Greens, as they did in Cunningham? I’d love comment from readers in the seat.
ALP Defect
By Susan Murdoch
MELBOURNE, Nov 7 AAP: Labor’s chance of holding the key seat of Melbourne has been dealt a blow with high-profile city councillor Kevin Chamberlin announcing today he would contest the seat as an independent.
Cr Chamberlin said he would quit the ALP and stand against Community Services Minister Bronwyn Pike for Melbourne.
Preferences could be crucial in Labor’s campaign to hold onto the seat –
currently held by a 12.4 per cent margin but considered vulnerable to a
protest vote to the Greens.
Cr Chamberlin said inner-Melbourne residents had been let down by the major parties. Labor had become riddled by factional warfare and was no longer concerned with representing the people, Cr Chamberlin said.
The former Lord Mayor said he would direct preferences to other candidates before Labor and the Liberals but had not decided if they would go to Greens candidate Richard di Natale. “I’ll be the underdog, but at least we’re providing an alternative,” he said. “Even if we make Melbourne marginal, it’s going to make them sit up and listen.”
Cr Chamberlin said one of the key reasons behind his departure was the Bracks government’s decision to build the Commonwealth Games village at the Royal Park Psychiatric Hospital site, which he says should be returned to parkland.
Melbourne is one of a number of inner-city ALP strongholds targeted by the Greens.
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Labor’s too little, too late on development
Previous actions make proposed reforms seem about as genuine as the emperor’s new clothes, writes Margo Kingston.
The Cunningham by-election revealed that Bob Carr is naked on the crucial state election issue of city and coastal development. The result: palpable panic in the ALP. The Planning Minister, Andrew Refshauge, is throwing backdowns, reforms and new policy to bitter voters like confetti.
The Premier – who endorsed the Sydney Lord Mayor, Frank Sartor, for Rockdale – admitted Labor corruption on Rockdale council meant “the electorate would have eaten us alive” if Labor had put up the local branch pick, the Rockdale mayor. Sartor is a trenchant critic of Labor development policy.
Carr has rejected passionate advice from Paul Keating to clean up Labor’s act on development. “I think we would be better off if developers were forbidden from donating election funds to municipal candidates and to political parties,” Keating said last year. Sartor agreed: “They donate to both sides and I think it’s a pity. I think it makes it very difficult.”
Public interest and the community have been forgotten or frozen out in today’s developer-driven NSW ALP. Rockdale opened the can of worms, and yesterday the ICAC began hearings into the Oasis development at Liverpool. The ALP minister Eddie Obeid and the Labor mayor of Liverpool, George Paciullo, will be key witnesses.
Refshauge’s bag of post-Cunningham tricks include a moratorium on the Sandon Point development after Labor’s refusal to act helped deliver Cunningham to the Greensand reversing Labor’s sell-off of part of Callan Park in Sydney’s inner-west for development.
He also acted on coastal development after eight years of inaction. In 1995, Carr promised the Greens he’d commission an in-depth scientific study of our coastline as a precursor to a comprehensive coastal protection plan. He’s since presided over an invasion of Gold Coast development from the north as planning ministers sat on their powers to call in sensitive developments. Refshauge said that, from last Friday, all such developments would be called in automatically, and that Labor would begin a three-year study of our coastline. But the policy isn’t ready. Refshauge’s department will be inundated with development applications, yet only three new people will be employed to cope. The criteria for regional offices – where staff numbers have been slashed to the bone – to send applications up the line or return them to councils for decision are not decided. The taxpayer, not the developer, will foot the bill for State Government supervision because Refshauge hasn’t decided whether to make them pay.
Refshauge’s core post-Cunningham announcement nails Labor’s disastrous performance on planning and environmental protection – a sleeper issue uniting Liberal and Labor voters which the Opposition leader, John Brogden, picked and ran with long before Labor realised it had no clothes. He’ll keep running, with the centrepiece – the Coalition’s first-ever coastal protection policy – ready to go when the time is right.
In 1997, then planning minister Craig Knowles ignored warnings from Sartor, greenies, surveyors, local councils and many Liberal MPs to pass without amendment a pro-developer revolution in planning and environment law which has triggered an angry voter backlash.
Knowles cut developers loose from many planning controls by stripping local communities of input and stripping home buyers of government protection against shonky builders. He allowed private operators – paid by the developer – to certify building and safety standards, ignoring warnings from the ICAC that this raised “new opportunities for corruption to occur”. The then deputy opposition leader, Ron Phillips, offered support for amendments, saying the Opposition “shares local government and community concern that private certifiers employed directly by developers could have their capacity for independent decisions compromised.” Knowles said no. The developer lobby cheered.
After the Herald exposed the tip of an iceberg that will give NSW homeowners nightmares for decades and has triggered class actions by distraught apartment owners living in fire traps, the Upper House forced Labor into an inquiry.
Post-Cunningham, Refshauge trumpeted “tough new measures to stamp out shonky building certifiers” to help “prevent improper relationships between developers and certifiers where the person supposedly acting as watchdog agrees to turn a blind eye in return for a regular flow of work”.
Not a shred of shame. Not a whiff of an apology, let alone financial help for the legal bills of citizens whose trust Labor so deliberately betrayed. And Knowles? Asked if he’d learnt any lessons, or had any regrets, his spokesman said: “He hasn’t been involved since 1999 [when he stopped being planning minister] and he hasn’t followed it since then.”
Any other potential NSW Labor premiers learnt anything?
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NSW parliamentary debate on the Environmental and Planning Assessment Amendment Bill, 1997
Kevin Rozzoli (Liberal, Hawkesbury,November 14, 1997)
I take a somewhat different view from that expressed by my colleagues. I do not support the legislation. In fact, I think it is a fairly appalling document which does not advance the cause of environmental planning and assessment in New South Wales. I suspect that, over time, it will fall even further behind.
I have been a member of this House long enough to have seen the original legislation; it is a subject in which I have taken a close interest. In the time that I have been a member of Parliament I have been closely associated with the development of the original legislation. Although I was in opposition at the time, I worked closely with the then Minister and with his chief advisers, Sir Neal Bignold, who is now a justice in the Land and Environment Court, and John Whitehouse, who was then working for Minister Landa.
I have great respect for the original legislation. It has its faults and it probably needs amendment after all these years, but it is interesting, well-constructed legislation that was well thought through. That is about the last appellation I can put on this mishmash of material which has been placed before us today.
Various members have waxed lyrical about the fact that this legislation will speed up the small development process. It may or it may not. It will not deliver better results for the community. It may well speed up the process, but there are so many loopholes that I fear for the communities that will be subject to the process that it will inflict on them.
This legislation, despite its 226 pages and its explanatory notes, is simplistic; it has no depth or substance and it tells us very little. It is process driven and in no way, shape or form has any grounding in environmental planning concepts. That may be excused by the fact that it still carries with it a number of the provisions and concepts of the original legislation, but it sets aside the potential efficacy of a lot of the provisions in the original legislation and I suspect that it will not solve the problems that have been identified by other speakers in this debate. I think it will result in a lot of unhappy adjacent landowners throughout the community.
What has gone wrong with the planning process since the introduction of the original Act in 1979? One must look beyond the legislation to the councils and to the Department of Urban Affairs and Planning to determine why planning in this State has gone awry.
The State planning department has gone through a multitude of names and a multitude of superficial changes, but of all the government departments it has stayed truer to its original philosophy and bureaucratic structure than any other department. No matter what is done to it, it always survives and comes out looking the same in the long run. It is probably trite to say – but for those who know me it is a well-known one-liner of mine – that one thing the department of planning has never done is plan the State. It has failed in its fundamental charter to set in place the parameters by which New South Wales can develop. Without those basic parameters for the smaller elements of the State, whether they be regions, local council areas or other small areas, the rest of the planning system cannot be expected to fall into place.
The department of planning has failed miserably in relation to the structure of State and regional environmental planning policies, as identified in the Environmental Planning and Assessment Act. After five years of excruciating pain, last Friday the second amendment was made to Sydney regional environmental plan No. 20. I happen to have had a close association with that process, which is quite a benchmark in the development of regional environmental plans. It is a tragedy that it has taken too long to produce that plan and subsequent REPs, which have been developed with some of the principles embodied in them. It is a tragedy that it has taken that long for the department of planning to come to terms with regional environmental plans. State environmental planning policies are mostly worthless documents. I do not think they fulfil the original charter which was in the minds of those who conceived the Environmental Planning and Assessment Act in the late 1970s.
On top of the department’s failure to address a fundamental charter and its obsession in and involvement with the minutiae of State planning are the general malaise, incompetencies and other problems associated with a council’s implementation of its LEPs. I know that I am talking in strong terms but I have to; I want to put forward another angle to the ones that have been suggested by other honourable members. That is not to say that every council and the department of planning have failed. I pay tribute to the many officers in the department of planning at a regional level for whom I have the highest respect. I respect their integrity and their competence. I am not talking of people in the department today; I am talking about people who have worked in the department over many years. They have often spoken to me of their frustrations about a system that has not allowed them to do what they wanted to do.
By the same token many councils and planners on councils have done some good work over the years; but, by and large, they have failed to develop their full potential under the Environmental Planning and Assessment Act. The initiatives that were there to achieve better and more prescriptive results for planning have been ignored. This bill does nothing to advance fundamental principles that will guide sound and proper development in the future. As I said earlier, this legislation is process driven. It is all about process; it is not about environmental planning. It gives us no guidance for what might be the outcomes of the legislation. We could include in the title Environmental Planning and Assessment Amendment Bill the word “Pro-development” because the bill facilitates development.
If one assumed that all development was good development, that would be a good thing but, unfortunately, I have come from the community side of the track. I have been a community advocate all my parliamentary career and I believe in the fundamental wisdom of community opinion of what is good for an area. It is no wonder that environmental and community groups have concerns about this legislation. It is not that the legislation does not embody the problem; it is that it does not address the problems. It does not give any clear guidance, as did the original Act, to the community on the outcomes. In this debate honourable members have talked about long delays in the processing of development applications. This legislation confirms the original philosophy of the Environmental Planning and Assessment Act that if consent to the development application did not issue after 40 days it was assumed that the development application was rejected.
That may sound like an appropriate principle because a council should not approve an application if it is not satisfied with the development. But if the intention of this legislation is to try to facilitate speed of process in terms of small development, and I strongly emphasise small development, it may have been better to reverse the onus and state that if the development application was not dealt with within 40 days, the development was deemed to be approved. That would put the onus on the council to determine small applications within a 40-day period.
If it was deemed that 40 days was an unrealistic time frame, it might be appropriate to extend that time. Another 10 or 20 days may not be harmful if an applicant knows that at the end of that period and in the event of the council not making a decision the application would be consented to in the terms applied for. If that onus were put on the council, the council would make sure, as it is perfectly capable of doing, that it dealt with minor developments within 40 days, or whatever period was deemed necessary.
This legislation endeavours to bring together a number of issues which it is considered superficially will speed up process and facilitate the consideration of certain matters. I agree with the intention to expedite process and to make it more streamlined, but there are better ways to do it than those addressed in this legislation. For example, there is a considerable concern about the provisions relating to integrated development. I have looked at this question in some depth and I have great concern for developers who have to not only obtain development consent from a council, a process which is appealable to the Land and Environment Court, but may also have to make an application under the current water, mining or other Acts or obtain a licence under the environmental protection legislation.
It is poor process to have a system in which each of those elements is interwoven but separately and independently appealable. Some time ago I looked at ways and means under the water Act to bring together the provisions of licensing approvals for developments which required consent under the Environmental Planning and Assessment Act. There was the absurd situation of having two separate processes, both appealable to the Land and Environment Court and under different time frames and different circumstances. That was very frustrating for developers.
There certainly is a need to integrate that development. But this legislation gives no indication that the process will be brought together efficiently or will be in the interests of the developer and other members of the community. The processes that are spelled out in the legislation do not give the guarantees that the community seeks, that is, that the assessment of the separate matters which have been deemed by the community and confirmed by this legislation to be matters of individual consideration is carried out in a way that allows community input to the expert body that is issuing the approval, whether it is the Department of Urban Affairs and Planning or the Minister. If the expert body makes a determination, an objector should have a chance to test the veracity of the decision before it is lumped into the full process of consideration.
The legislation provides that the Minister or the council, depending on the classification of the development, must seek approval from the various bodies. If that approval is not forthcoming, consent cannot issue. The developer may be concerned because the approval may have been withheld by the expert body on unreasonable grounds. Conversely, if approval is granted, in the community’s view the approval may have been granted on unreasonable grounds. Apart from challenging the matter in an in globo fashion well down the track, there does not appear to be a process by which the elements of individual approvals can be tested in a way in which the community would have confidence.
That is not to say that sometimes consent will not be right; of course sometimes it will be right. But this type of legislation is concerned with the protection of the rights of the community. It might be said that under section 123 of the Environmental Planning and Assessment Act there is a fundamental principle that any person in New South Wales can apply to the Land and Environment Court about a breach of environmental law. However, that is a momentous procedure to go through because the process has failed to provide an opportunity for examination much closer to the circumstances that are being determined. I have no objection to the appeal process ultimately being rolled into one and there being one hearing of a matter before the Land and Environment Court. But it is absolutely important with integrated development that those other areas of concern which are being brought into this process are clearly set out in the legislation.
The legislation fails to achieve that particular element, as it also fails with complying development. Virtually all we are told is that complying development is development that complies. There are other suggested parameters for the determination within a local government area of what is complying development, but that is a one-hit operation. There is one opportunity to make submissions to the process by which the complying development is identified. However, many people do not focus on these issues until they are affected personally. No-one can look into a crystal ball and determine problems that will emerge later. In fact, a district may evolve in such a way that problems appear that did not previously exist.
Whilst the intention of the concept of complying development is probably noble and honourable, the form in which it is presented in this legislation is grossly flawed. My advice to the Minister is to take the legislation out of the Chamber now, go back to the drawing board, construct and develop the legislation in a way that makes more sense – certainly more sense to the community – and come up with something more transparently accountable, more honest and more responsible. At the end of the line the people who are basically concerned with environmental planning outcomes are members of the general community. The developer does his development and takes his money and runs, and moves on to the next development. The poor people in the community who live next door to the development are there suffering long after the developer has gone. The legislation is very poor and should be thrown out.
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Development backlash
By Linda Morris, SMH, 5.10.99
Urban density has emerged as a big issue in suburban Sydney, but it remains to be seen whether the politicians have got the message, writes Linda Morris.
IN SOUTHERN Sydney, the Empress Gardens is seen to represent the worst excesses of overdevelopment. Approved by Kogarah Council in 1994, it rises six storeys above the Hurstville CBD – 150 one- bedroom apartments with undercover parking beneath Woniora Gardens.
Disparagingly known as the “pink towers” for its salmon pink paintwork, it has become a rallying point for local residents against overdevelopment.
Such was the controversy that the Liberal-controlled Kogarah Council resolved three months before the State election to put up a billboard distancing itself from the development.
It also commissioned a full-page advertisement in the influential St George and Sutherland Leader, pointing to six developments refused by council but subsequently approved by the Land and Environment Court.
The message, which tried to deflect blame for overdevelopment on the State Government’s urban consolidation policy, however, did little to boost the prospects of the Liberals’ State candidate, Sam Witheridge, in the marginal seat of Kogarah, and backfired on the Liberals in Miranda and Menai, which all fell to Labor on March 27.
In council elections in southern Sydney last month, ratepayers recorded an even stronger protest, sweeping to power the ALP and an array of Independents who had campaigned on a platform of grassroots representation, controlled development and the preservation of neighbourhood amenity.
The anti-development pattern was repeated across Sydney during the local elections, with many areas recording protest votes against the major parties.
In Sutherland, the Liberal Party lost control of the council to a rejuvenated ALP and a group of Shire Watch Independents in a campaign which focused almost entirely on issues of overdevelopment and the quality of development.
In middle-class Ku-ring-gai, the Ku-ring-gai Preservation Trust won seven seats on the council, and captured the mayoralty, in a campaign which made a virtue of community opposition to the State Government’s targets of urban consolidation.
In Willoughby, where on the eve of the local council elections the council had rejected the advice of its own planning officers and applied to relax foreshore development controls, three Independents were elected.
Urban consolidation is a name given to the planning policy designed to halt the suburban sprawl to Sydney’s south, north and west and encourage the building of new homes in ready-made communities closer to the CBD.
Two years ago, the Government told all councils to identify areas that could take higher densities by using the State Environment Planning Policy (SEPP) 53 to force change.
While the principle has been sound, Dr Glen Searle, a senior lecturer in planning at the University of Technology, Sydney, says the practice has been less than ideal.
In effect, urban consolidation has meant concentrated development of apartment blocks, townhouses and villas in streets where the quarter-acre block has long held sway. This has exacerbated problems of traffic congestion, putting pressure on open space and led to complaints of overshadowing and loss of privacy.
“There have been some good examples of urban consolidation and some bad,” says Searle. “It’s been a fairly patchy picture.”
The Government maintains that SEPP 53 has slowed the urban sprawl, with new development in fringe areas now accounting for only 30 per cent of new homes, compared with 40 per cent five years ago.
But the medium-density housing push has been concentrated in the council areas of Kogarah, Hurstville and Sutherland, according to the Australian Bureau of Statistics, with more than 5,000 townhouse, villas and multi-storey developments approved by southern councils, the highest number in the metropolitan area.
By contrast, the northern councils of Ku-ring-gai, Hornsby, Pittwater and Lane Cove have escaped the worst of the development pressures.
The wave of anti-development sentiment comes as no surprise to the major parties, which had furiously sparred over the issue in the State election. In southern Sydney, discontent over the pace of such development reflected in the poor showing of the Coalition in the State seats of Miranda, Georges River and Menai.
In the weeks before the State election, issues of urban quality were identified as a significant issue in qualitative polling prepared by the Liberal pollster Mark Textor for southern Sydney seats.
Textor’s research showed that crime was of greatest concern to 23 per cent of voters. A further 18 per cent considered the local environment an issue and 16 per cent specifically identified overdevelopment. Combined, the urban environment was a voting issue for one in three voters, far more than law and order.
Says one Liberal: “The Textor research showed people were ballistic about it. But it was never identified as an issue and then incorporated in the general campaign. We didn’t drive home what was emerging from the focus groups. It was a particularly Sydney problem, but it was never understood.”
As in the council elections, Labor’s key campaign tactic sought to turn resentment about overdevelopment back onto the Liberal-controlled councils of Kogarah and Sutherland and to blur the lines of responsibility.
Said one Labor campaigner: “The unrestricted growth of high rise had been a big issue in Hurstville and Kogarah. It was an open invitation for the Labor Party. It said, ‘Here’s my jaw, stick it out and let them hit it.’ And we did.”
In hindsight, the defeated Liberal MP Ron Phillips says that while overdevelopment was not the main reason he lost his seat of Miranda, it was the only local issue to move votes: “It came down to the ability of the Labor Party to make overdevelopment its own issue, even though it was an issue of their own making.”
The strength of the political backlash at local and State level is now forcing a policy rethink for the NSW Opposition. At the start of the State election campaign, the Coalition promised to repeal the SEPP 53 legislation, but it was a badly timed announcement and received only postage-stamp treatment in the media.
Reflecting on the State and local election results, the Opposition’s urban affairs and planning spokesman, John Brogden, says councils have been unfairly blamed for implementing State Government policy: “It is ironic that one of the issues the Labor Party campaigned on in 1995 was dual occupancy and here we are with a planning strategy with much worse consequences.
“We’ve got to look at the whole role of urban planning over the next few years, but the Opposition has huge sympathy for residents where there is an increase in density and not a concurrent increase in infrastructure.”
To date, the Minister for Urban Affairs and Planning, Andrew Refshauge, has been unmoved by the council election results, proposing little more than consultation and resisting calls for substantive amendments to the Government’s urban consolidation policy.
The former Liberal Sutherland mayor, Kevin Schreiber, says that sooner or later, ratepayers will realise that it’s State planning policy, not councils, that’s driving development.
Notably, the first priority of Sutherland’s new Labor mayor, Ken McDonell, is to revise development codes formulated 30 years ago and to argue for amendments to the State Government’s urban consolidation policy.
Schreiber predicts a more belligerent council will have little impact on the pace of development, only wasting ratepayers’ funds contesting challenges from developers in the Land and Environment Court.
“The new council will turn around and reject development applications and the developers will off and go to the Land and Environment Court at a cost of $30,000 for ratepayers, and all for the same result,” he says.
In North Sydney, a group of anonymous developers trying to push through large-scale projects in the North Sydney CBD took the unusual step of hiring a public relations firm to urge pro-development ratepayers to overthrow the conservative North Sydney Council.
Barry Hyland’s publicity agency, PR+Communications, organised a letter-writing campaign in local daily newspapers, arguing that North Sydney Council is unnecessarily holding up $200 million in new development projects and has spent $5.5 million since 1995 fighting development and building applications through means such as the Land and Environment Court.
The campaign paid unintended dividends for the Independent Genia McCaffery, who was returned as mayor with 66 per cent support, up from 48 per cent four years ago.
“I don’t think the developers picked the mood and understand how much residents are concerned by levels of development and the constant onslaught of their communities,” McCaffery said.
“I know this because . . . every time I go to the supermarket I get badgered about it. Nobody is saying orderly and well-planned development . . . is not a good thing, but the imposition of urban consolidation policies and their poor implementation has angered people.”
Hyland says that in most cases, the developers win in courts because the council gives undue weight to residents’ concerns, despite the council’s own planning rules that often provide for, and encourage, greater densities.
“Not all development is good; some of it is hideous, but most of the projects we are talking about are earmarked for areas where the cityscape has already been set.”
If anything, McCaffery says, the council elections proved one thing: “Governments who ignore their communities end up in trouble.”
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Driving a Carr through the environment
Bob Carr used environmental laws to climb to the top of the State political tree, but once there proceeded to trim it limb by green limb. Tim Bonyhady assesses the damage.
SMH Spectrum, January 29, 2000
WHEN Bob Carr was a journalist on The Bulletin 20 years ago, he was one of the redeeming features of a magazine long past its glory days. Almost every week, Carr would produce another sharp political piece, occasionally addressing the national stage he aspired to join as a Labor politician, more usually fixing on State or union issues. The most significant, given both Carr’s subsequent political career and his recent environmental pronouncements in the Herald, was a profile of Paul Landa, Neville Wran’s first minister for planning and environment and one of Carr’s own role models.
While Landa’s reputation in 1980 was very mixed, Carr’s admiration for him was manifest as he dwelt on how the minister had not only given Wran’s “cautious government some real reformist glamour” but also marked himself out as a potential party leader through his handling of the environment portfolio. One key was Landa’s “radical upgrading of the planning and environment function – the department went from being a Cabinet poor sister to an equal of the big developmental departments”. Carr predicted that this change was “irreversible”.
But Carr also made much of Landa’s success in extending the area of national parks by 40 per cent. Carr reported that “Landa had pursued extension of parklands so ruthlessly and single- mindedly that some younger Caucus members were heard to complain that he was leaving nothing for any future occupant of the office to achieve”. Carr made even more of Landa’s Environmental Planning and Assessment Act, which he recognised as the most advanced in Australia.
As Carr put it: “The reforms represent Landa’s main legislative edifice. Previous State planning law was just a rewrite of the 1932 English Town and Country Planning Act, enacted in NSW in 1945. Landa’s updated bill broadened the whole scope of planning to encompass ecological and social factors and, in addition, gave citizens the right for the first time to object to developments.”
This judgment is particularly significant as the act reaches its 20th birthday, because Carr has probably had more influence than anyone else over what has become of this legislation. Just a year after entering State politics as the MP for Maroubra in 1983, Carr became minister for planning and environment when Landa’s death resulted in a Cabinet reshuffle.
A year later Carr began dismembering Landa’s reforms when he introduced the first major amendments to the Environmental Planning Act. Far from extending its environmental requirements or expanding its provisions for public objection and appeal, Carr reduced them.
So Carr has proceeded since he led Labor back into power in 1995 – the first and still the only NSW politician to use planning and environment as a ministerial step to the top of the political ladder. Both the 1996 and the 1997 amendments to the Environmental Planning Act extended the State Government’s powers while curtailing public rights, environmental protections and the power of local councils.
Meanwhile, Labor has repeatedly sidestepped Landa’s legislation. The Wran Government started in the early 80s when it legislated to exempt a swath of major developments from the environmental planning system. It continued while Carr was minister in order to authorise such projects as the monorail and the Harbour Tunnel. Labor under Carr has done the same with last year’s Walsh Bay legislation, authorising Mirvac to demolish a wharf that had been subject to a permanent conservation order, just the most recent example.
As is often the case with such legislation, the Walsh Bay Act was designed to stop a legal challenge even starting. On the day the National Trust was due to begin testing the legality of this development in the Land and Environment Court, the NSW Government announced that it would be legislating in Mirvac’s favour. As a result, the judge adjourned the hearing. A month later, the legislation was in place, stopping the trust invoking either the Heritage or Environmental Planning acts.
Yet the Carr Government has also intervened, even more dramatically, between when a case under the act was heard and decided. After Rosemount Wines mounted two successful challenges in the Land and Environment Court in 1995 against the Bengalla open-cut mine near Muswellbrook, Bengalla took the second case on appeal. The Court of Appeal duly heard both sides’ arguments. But before the court could hand down its judgment, the Government legislated to approve the mine.
The result, says Justice Paul Stein, who spent 12 years on the State’s Land and Environment Court, has been the gradual erosion of almost everything Landa set out to achieve. Stein maintains that as a result of the Environmental Planning Act’s amendment in 1997, “the last vestiges of traditional planning and genuine public participation have been largely abandoned”. Despite all the political rhetoric, ecological sustainability is “seldom applied in practice”. The norm is now “ad hoc decision-making, often at the behest of individual entrepreneurs who court State or local government politicians”.
This negation of Landa’s reforms is all the more significant because Bob Carr’s image combines the bushwalker conservationist, keen to experience the Blue Mountains or Budda-wangs in the company of the late Milo Dunphy, with the armchair conservationist quick to show off his book learning. Neither the Prime Minister nor any other premier would have thought to start the year by triggering a debate in the Herald about the environmental challenges of the new millennium.
So why has Carr been not just a silent party but an active participant in the negation of Landa’s reforms? What does it say about the extent of his environmental concern? Is he a better talker than doer, more adept at talking up a big issue such as population control, which is more or less outside his political control, than addressing issues within his own bailiwick where he has immediate power?
One answer is that Carr’s environmental record is much better in some other areas, although still very mixed. A key example is the Wilderness Act which he introduced with much fanfare in 1987. According to Carr, he offered Parliament “a historic choice”. Either Australians could “continue to destroy, piece by piece, the great natural areas of this country” or they could “resolve that the very fibre of this continent should be treated with greater respect, that our much-diminished wilderness should be protected, and that our country should earn a reputation for excellence in its approach to conservation”.
In fact, Carr’s act was toothless. The problem was that while any member of the public could nominate an area for wilderness designation – and the director-general of National Parks then had two years in which to respond to this nomination – the Government had an unlimited period in which to accept, reject or ignore this advice. As a result, the Wilderness Act was a dead letter during the first term of Nick Greiner’s Liberal-National Party Government.
But since then, the act has had some bite. By the time the Coalition lost office in 1995, it had declared 650,000 hectares of wilderness, a significant achievement given the opposition of some sections of the National Party. Now there are more than 1.5 million hectares, or almost 2 per cent of the State, including 520,000 hectares last year, the most ever. Just as Wran is remembered for protecting the State’s rainforests, Carr may be credited with preserving its wilderness.
Carr’s handling of the Environmental Planning Act has been very different because it has affected a very different bundle of political and economic interests, some of which Labor has wanted to accommodate regardless of the environmental costs. The Wran Government became set against Landa’s legislation simply because it achieved what it set out to do in exposing the environmental flaws of a range of major projects.
Had Carr been right when he predicted that Landa’s upgrading of the planning and environment ministry was irreversible, he might have been able to maintain the integrity of Landa’s act. In fact, Graham Richardson has been the only environment minister in either the Federal or State arena who matched Carr’s image of Landa. While Carr was minister, he could not pack such punch, even if he wanted to.
At least as significantly, Labor soon found that for all the uproar excited by its special legislation, it could get away with these interventions. The press could accuse it of treating the Environmental Planning Act “with contempt”.
The late Jim McClelland, the former Whitlam minister and first chief judge of the Land and Environment Court, might have charge his old Labor mates with a “cynical abuse of power”. But there was no electoral backlash. As McClelland noted in 1987: “Wran taught his successors that they could get away with brush-ing any court aside.”
Yet, particularly since Carr won office in 1995, his Government has also been influenced by more recent political currents which have put environmental planning laws into retreat across the country. The Kennett Government characteristically went furthest as it used special legislation to authorise its favoured projects, such as the Formula One Grand Prix in Albert Park and the City Link freeway, and savaged the public’s rights under Victoria’s Planning and Environment Act. The Liberal government of Dean Brown in South Australia was most explicit about its changes. From 1982 until 1993 South Australia had a Planning Act. Now it has a Development Act.
While partly a manifestation of the traditional developmentalist ethos of government in which environmental protection has long been cast as an impediment to private investment and job creation, these changes have been fuelled increasingly by the rise of economic rationalism. Privatis-ation, national and State competition policies and contracting out have all contributed to the diminution of local government and the exclusion of public participation. The recent introduction by the NSW Government of the private certification of development proposals is just one manifestation of this trend.
The limited success, if not failure, of some of these changes may force the Government to rethink. Carr’s 1997 amendments to the Environmental Planning Act, which introduced “integrated development assessment”, is an example. While designed to free developers from the uncertainty of having to secure multiple approvals over an extended period, it appears they are resulting in development applications taking longer to approve, increasing developers’ costs.
But in so far as the Carr Government has simply followed fashion in running down its environmental planning controls, it might also look to Victoria. Since the readiness of the Kennett Government to override local planning regimes was one of many factors that contributed to its defeat last year, the new Bracks Government has begun offering a new approach to planning decisions. As part of its successful campaign in the December by-election for Kennett’s old seat of Hawthorn, Labor’s Minister for Planning, John Thwaites, announced that he would be constraining his own powers.
The focus of Thwaites’s announcement was ad hoc State intervention in planning decisions, which has also been such an issue in NSW. Where Thwaites’s Liberal predecessor, Rob Maclellan, had been widely criticised for his interventions, which often involved seemingly trivial issues, Thwaites announced that he would call in decisions only after the parties had tried to resolve the dispute. Where Maclellan had run foul of the State’s auditor for generally failing to maintain adequate documentation justifying his interventions, Thwaites promised to explain his reasons publicly in writing.
This measure is just a small step towards restoring the integrity of Victoria’s Environment and Planning Act. The Bracks Government would have to do much more to live up to Thwaites’s boast that he was ending “ad hoc ministerial intervention”, let alone that henceforth councils would “have a lead role in planning” and the community would “be heard and their values and needs reflected in planning decisions”.
Yet even the mere statement of these goals presents a challenge to Carr. After all, these goals are just what Landa aspired to 20 years ago when he introduced the NSW Environmental Planning Act.
Tim Bonyhady’s books include Places Worth Keeping: Conservationists, Politics and Law.