Should the NSW planning system have its own tribunal?
MB Town Planning has listened with interest to recent commentary around the latest report of the Commonwealth Government’s Productivity Commission regarding consumer protection.
See, for example, this article in “The Conversation”: http://theconversation.com/the-latest-productivity-commission-report-isnt-strong-enough-on-improving-consumer-protection-70056.
The issues that the Productivity Commission and commentators on these issues are discussing relate to giving consumers protection without embroiling them (and other parties) in expensive litigation.
For example, if I went to a burger shop and paid for a burger and there was supposed to be a free chips deal, and the shop then refused to honour that deal, I would hardly want to call a barrister to get something done about it.
That is why our consumer law system is supposed to offer other levels of resolution, such as being able to report it to the Department of Fair Trading, for example.
As MB Town Planning has no expertise in consumer law, we will not go any further into that area. However, we do see a connection between that issue and the question of the rights of applicants and other people, including property owners, when dealing with local government authorities.
How much do Sydney residents want local democracy?
Under the present planning and approvals system in NSW, local government authorities have powers that are limited when it comes to major strategic decisions.
The limited powers of local government is evident in the context of the current and highly topical amalgamations under which temporary, State government appointed administrators have replaced elected Councils.
Local government is not recognised in Australia’s constitution and is a creation of each State jurisdiction. Local councillors are often not well-known and are not paid very much – not enough to make a living from their role.
The public conversation around the respective roles of State and local governments focuses on the extent to which there is locally based decision-making, as being generally indicative of the extent to which democracy in NSW or Australia is effective.
On the other hand, MB Town Planning observes that many of the issues that arise within each of Sydney’s many local government areas are reflected across Sydney.
For example, the introduction of the General Housing Code, which sets standard design controls for dwelling houses across NSW, could have been regarded as undermining democracy because it reduces the extent to which the elected Councils across each local government area can influence local decisions in their area concerning dwelling houses.
However, MB Town Planning believes that most people in Sydney do not think of that issue in those terms. Most residents of Sydney do not think of themselves as belonging to a local enclave – they often change where they live according to lifestyle factors rather than a highly ingrained sense of localism. Indeed, many Sydney residents change where they live in the world from time to time. For such residents, the goings on in the Council where the live or own property is not very important.
Of course there are many examples of localism – people joke about the alleged insularity of areas such as the Sutherland Shire or the Northern Beaches; residents of Ku-ring-gai take pride in, and sometimes have a sense of privilege associated with, their locality; people joke about eastern suburbs residents never going over the bridge; and there is often a strong sense of regional identity amongst residents of Western Sydney.
It is not that there is no sense of suburban identity. However, does this really extend to the point of residents of a suburb being greatly concerned about the permitted setbacks of dwelling houses? Residents tend to simply want good decision-making and a good decision-making process – which would share common features across Sydney.
On the General Housing Code, there have been problems with its implementation in the opinion of MB Town Planning. Those problems have arisen from sloppiness in its drafting which have lead to confusion around the interpretation of its provisions. However, those problems are of a technical nature. From a democratic perspective, however, there has been little political reaction against it. People may not like it in some instances – such as when someone’s dwelling house causes excessive overshadowing. However, that concern is less about local democracy and is more about the quality of the controls.
This does not mean that residents do not ever want to participate in decisions about what is going on in their local area. However, MB Town Planning is of the view that the important consideration is not to do with theoretical principles of local democracy. Instead, it is about the quality of decision-making and the decision-making process. Where residents have a concern about something happening in their area, they want the right to put their perspective to a body who will take those concerns seriously and who will objectively consider them as part of a balanced decision-making process in which the reasons for the decision are clearly set out.
The reality of how that is taking shape in Sydney is through the appointment of the Greater Sydney Commission and of District Commissioners. Those appointments have not been without debate or consternation. However, the level of political reaction has not been so great that I would expect to hear it spoken about frequently at weekend barbecues or that I would regularly see protests about it on the street.
What powers do local governments continue to have?
Big decisions are being taken away from local governments. However, with those decisions elected Councils continue to exercise soft power. If elected Councillors and/or the Mayor strongly support or oppose a particular planning proposal or major project they may well be able to influence the outcome.
Of course there are exceptions – such as WestConnex. However, that is hardly anything new – whilstever Sydney has existed major infrastructure projects have been driven by the State level.
As decisions about major projects shifts from being made by elected Councillors to being made by panels, the role of Council staff increases relative to the role of elected officials. Council staff have the role of assessing a project at a technical level and in relation to the policies in place.
That assessment role of Council staff should not be underestimated. Regional planning panels take staff recommendations seriously and tend to follow those recommendations. Similarly, for planning proposals (meaning rezoning of land), the role of Council staff will continue to be significant. The panels, and in all likelihood the District Commissioners, will not have the resources to undertake detailed assessments of complex development applications. Development applications tend to be very complex and assessing them is a significant undertaking. Someone has to do the hard work of examining a proposal in all of its detail; assessing the hydraulic engineering plans; calculating the floor space ratio; interpreting tricky matters of interpretation; or contextualising the proposal in the site’s history and locality. That work will continue to be done by Council staff.
A further area of significant local government power is in Development Control Plans. Development Control Plans are an important matter for consideration in the assessment of a development application and Councils (including elected Councillors in this case) can exercise very considerable influence on the form of development through those plans. Councils are normally the bodies determining the content of development control plans, without direct influence or veto by State government.
To get a sense of the influence of local Councils, we need only observe the differences in the development culture between a Council like the City of Sydney and the City of Bankstown (which is now merged with Canterbury). The City of Sydney is intensely engaged with the form of development and with the design of the public realm. In comparison, I attended the last ever meeting of the former City of Bankstown and could see Councillors, in an almost casual manner, determining the heights and floor space ratios in new development precincts with no real attempt to capture value or to give detailed consideration to outcomes. The attitudes and energy levels of local Councils will continue to greatly influence the form and quality of development within each local government area.
How about the fairness of small decisions?
Development in Sydney is shifting from the role of elected Councillors making decisions on individual development applications, to a more professionalised decision-making process.
However, there continue to be many developments that require consent from the local Council. In particular, small developments are subject to a high level of control both from elected Councillors and from staff.
Whenever bureaucrats are able to exercise discretion, or are able to either be speedy and effective or not, there is the potential for unfair or unreasonable outcomes. That is not intended to be a criticism of local government staff in general. Council planners are often the ‘meat in the sandwich’ between applicants, Councillors, senior staff and objectors, and their role is challenging. However, amongst the activities of staff carrying out those challenging roles there are instances of unreasonableness and/or intransigence. MB Town Planning questions whether we could not improve existing processes for dealing with those occasions.
Some examples of how Councils can be unfair or unreasonable may include:
- Council officers can take an unreasonably long time to assess a development application. That length of time might be for reasons outside of the individual officer’s control. For example, the Council in question may not be properly resourced. However, that does not make things any easier for the applicant.
- Council officers can take an unreasonably long time to assess a development application having regard to the small scale of the development. For example, someone might be proposing a simple shop fitout or commercial use, but the Council might take six months or more. If someone is seeking to lease premises, that can make the whole proposition untenable.
The General Commercial and Industrial Code and Commercial and Industrial (New Buildings and Additions) Code allow a wide range of commercial and industrial developments and uses. However, there are occasions when a development application is still required. For example, if the existing commercial premises do not have a proper, established consent history (e.g. a shop that has been operating for 50 years and the records are lost or unclear); if the use is as a gymnasium; if non-standard hours are proposed; if the site is within a conservation area or is a heritage item. In many of those cases, the particular proposal should not be any more contentious than a development that is normally permitted as complying development. However, because development consent is required, the applicant may have to wait 6 months for something that should normally be approved straight away.
- Council may give unreasonable weight to a particular issue, even though that is inconsistent with the usual expectation that the development should be allowed. For example, a two storey dwelling house might normally be complying development (i.e. able to be automatically approved by a certifier) except for the fact that it is within a high aircraft noise area. The development might include all of the noise insulation that should be provided – however, Council might decide that the application should be refused because Council does not think that a two storey scale is appropriate in the streetscape. That outcome seems to be unreasonable given that it is only because the site is within a high aircraft noise area that the development cannot be complying development, and that aspect has nothing to do with the visual scale of the development.
As another example, Council can make a manifestly unreasonable assessment of heritage impacts. MB Town Planning is aware of a case where a dwelling house within a conservation area (but not a heritage item) was sought to be substantially repaired and reconstructed to its current form. That dwelling house was a single storey fibro shack and was literally falling apart. It interior was rotting and the house had been vacant for several years. Its interior had no decorative features whatsoever. The Council in that instance opposed reconstruction or redevelopment. Amongst other things, the Council said that the interior of the building was of heritage significance!
Another area in which Council officers can unreasonably exercise their powers relates to enforcement. Council officers have a considerable degree of discretion in deciding whether to proceed to serve an Order on a property owner. MB Town Planning is aware of an instance, for example, in which a factory had been constructed in the 1980s; it had been strata subdivided in the early 1990s; and had throughout that time hosted multiple light industrial uses. However, a number of the units had not received specific use approval. In 2013 Council proceeded to serve Orders to cease use of the units and also issued the maximum possible fines – yet a great many light industrial uses in that same locality were not subject to such Orders even though they had no consent. There was a disturbing sense of arbitrariness to the decision which makes such a decision inherently capable of having been made for reasons that are not to do with the public interest.
Councils can also unreasonably exercise their powers at smaller stages of the development application process. For example, they can reject a development application at the counter – preventing it from being lodged. That is sometimes done for good reason – but on some occasions a development is rejected for reasons that are to do with the officers opinion on the merits of the application rather than legitimate reasons such as the completeness of the information provided.
For those who are concerned about local democracy, such actions by Council officers might seem like an appropriate balancing of the ledger between State and local government powers. However, the above examples tends to affect smaller developments and small organisations and individuals more so than larger developments or organisations. For someone carrying out a large development, a delay in processing or an unreasonable decision can be factored into the process and the costs of seeking redress in the Land and Environment Court are worth bearing. For someone merely seeking to occupy a shop, unreasonable delays or decisions will generally mean that they simply cannot proceed to occupy the premises. That can have devastating consequences for an individual merely trying to start up a business.
An idea for dealing with bureaucratic unfairness
At present, the main recourse that applicants have against unfair or unreasonable treatment by local Councils is the Land and Environment Court. However, as set out above, the costs of going to Court may outweigh the scale of the project.
Aside from the costs, the length of time involved tends to be unreasonable. First of all there is a 40 day wait, outside of any “stop the clock” periods during which Council may have requested additional information. An appeal can then be lodged, but it might then take another 3 months before a hearing. It can take longer than that, depending on the availability of Commissioners and the actions of Council.
If you are a tenant seeking to occupy premises, and if Council insists of taking an obstructionist position, then it may become untenable to appeal due to the length of time involved.
There are also significant legal costs and there may be significant costs of expert witnesses. Then there is the possibility of the Court sympathising with Council, in which case Council’s costs may have to be paid.
If the Court sympathises with Council, that might seem like a fair enough outcome at the end. However, what is unfair might not be the decision somuch as the process that has had to be gone through to arrive at that decision. For example, the issues may boil down to whether the number of car spaces is sufficient for the proposed use. However, in order to test that issue, the applicant has had to prepare a fully documented development application (detailed plans, maybe an acoustic report, a traffic and parking report, survey plans, engineering plans) and has had to wait for a long time, during which the premises are vacant and are earning no rent.
In the case of consumer law, it is recognised that it is unreasonable for consumers to be expected to take full legal action against a large corporation who may have treated the consumer unfairly. Therefore, concepts such as the role of the Department of Fair Trading, tribunals, an ombudsman and other bodies mediate between the individual consumer and the need for full legal action. There is debate about whether those bodies and processes are effective – but at least it is clear that there is normally some mediation between the consumer and the large corporation.
However, when an individual applicant, or someone against whom Orders have been served, is faced with the Council bureaucracy, there is often no choice but to take action in the Land and Environment Court.
What MB Town Planning would suggest is the formation of a tribunal, or multiple tribunals (such as area-based or based on the type of development) that are geared to make speedy determinations on straightforward aspects of a development application or compliance matter. A party should be able to take only part of a matter to that tribunal, or an individual action by the Council, and receive a speedy resolution.
Here is an example – someone could have a development application with Council for the internal fitout of a shop. Council might have so far taken 50 days and may have made no progress in the assessment. The applicant would take the issue to the tribunal and the tribunal could make a determination that the application would be automatically approved unless the Council made its determination within two weeks.
To take another example – in the case of the fibro house that was falling apart and that Council was insisting could not be reconstructed, the matter could be taken to the tribunal and the tribunal could make a finding that Council was being manifestly unreasonable. In such a circumstance, the tribunal might simply find that Council was to be prevented from refusing the proposal on the grounds of the heritage significance of the building, and might also set a time frame upon Council’s determination of the application.
In thinking through how such a tribunal’s powers would be exercised, we will find room for contention and complexity. However, it is to be borne in mind that elected Councils have on many occasions made resolutions of a similar nature – and the world has kept turning.
The main role of the tribunal would be:
- To be presented with allegations by applicants that Councils have acted in a manifestly unreasonable or unfair manner. There might well be many cases where that is not established. The tribunal could set a relatively high test so as not to create a ‘free for all’ for applicants;
- In cases where it is found that there is manifestly unreasonable conduct by a consent authority the Council would then be invited to propose how they would redress the situation and an agreement could be sought;
- In cases where Council does not, in the opinion of the tribunal, show good faith in offering a resolution, the tribunal could make orders as to what will occur;
- A tribunal may make a ruling as to a specific aspect of the approval process. For example, if Council refuses to accept an application the tribunal may simply declare that the application is accepted.
The workings of the tribunal could be such that the applicant has to make a clear case of manifestly unfair or unreasonable conduct. If the circumstances are nuanced and if Council is not clearly shown to be acting in a manifestly unreasonable manner, then the matter could be summarily rejected and Council proceeds normally.
There would be considerations of what the costs would be of bringing a matter and of any cost implications of an unsuccessful action.
It would be understandable if reactions to the proposal for the establishment of such a tribunal were negative. The Land and Environment Court was originally intended to be a relatively reasonable, not overly legalistic body. However, over time it has become more and more complicated, and applicants or respondent consent authorities seem in many cases to receive better treatment if they have well recognised lawyers and barristers running cases.
The concerns would tend to relate to the potential for tribunal cases to be similarly bogged down in legalities and dominated by expensive lawyers and barristers. A further consideration might be that in some cases a Council might be acting in a manifestly unreasonable manner – however, in order to see that that is the case there might be a great deal of technical information to be processed. Therefore, the notion that a Judge Judy type figure could ‘shoot from the hip’ and dispense justice might be flawed.
Nonetheless, the idea of a tribunal as a body operating outside of the judiciary and having a carefully defined remit does seem to have currency in consumer law and might potential have value in our land use planning system.
For now, MB Town Planning puts this idea forward mindful that it is something of a ‘thought bubble’ but recognising that there can be great unfairness in our current planning system that is not addressed by the Land and Environment Court.