Unintended consequences. How NSW planning laws have stolen democracy from ratepayers

By LAURIE PATTON | 11 December 2019

One of the fundamental principles of the democratic system enjoyed in Australia for more than 200 years is the right to make representations to your local MP, or in the case of local government to your elected councillors. Changes made last year to NSW planning laws have denied ratepayers this avenue and effectively handed unbridled power to unelected council bureaucrats.

According to the website of the Independent Commission Against Corruption: “Lobbying is common in local government. The most common form occurs when a group or individual makes direct contact with a councillor in an attempt to influence a council decision”. Section 232(2) of the Local Government Act 1993 makes it clear that councillors have a representative role in considering the views of constituents and communicating with them.

However, new planning act provisions have been interpreted by at least one council to mean councillors are no longer allowed to become involved in respect of development applications. Presumably these new provisions were designed to reduce the level of perceived corruption in local government, where developers and others have been known to secure favourable outcomes by improperly influencing elected officials. Of course it fails to preclude council officers from such influence, but more importantly, it allows them to ride roughshod over the opinions and the needs of ratepayers who are now left with no alternative but to pursue expensive and time-consuming legal or administrative actions.

A potential saving grace is a recourse to Local Planning Panels, which have the ability to override a council officer’s decision. But the odds are stacked very unfavourably against the applicant. Councils get to appoint the panel members, including an “independent” community representative.

For more than year I have been attempting to secure approval to remove and replace a tree that has grown so large it now overshadows the house and whose branches now extend into two adjoining properties. The roots of this tree have already interfered with the main sewer line passing through our backyard and have caused irreparable damage to paving an independent structural engineer has declared constitutes a risk of personal injury.

All we want to do is remove this ridiculously large tree and replace it with something more suitable. It is a less than 20 years old Chinese Elm that the council’s own independent advisor says has no heritage value and he sees no reason why it should not be removed. All up two arborists, a heritage advisor and two engineers have inspected the site and none has argued that the tree should not be removed. Six or seven council employees, including the general manager, have inspected the site and seen the damage for themselves.

For his part the relatively new general manager has stated that he has a policy of not overruling his subordinates. For their part the planning department staff appear determined not to budge despite all the advice and evidence supporting our application. Under the old planning provisions councillors could have sought to secure a common-sense outcome. However, under the new laws – or at least the interpretation of them being taken by this council – they are now powerless to become involved.

The ultimate option is to take the matter to the Land and Environment Court. However, this is an even more expensive and time-consuming exercise that could take many months. In any case why should anyone have to go to court over such a straightforward matter where the evidence is clear and intransigence seems to be the only reason why council officers refuse to be reasonable?

From the outset I have made the point, to the councillors and to their officers, that for me it is also a matter of principle. Yes, I can afford the costs of this dispute – which are already substantial just in terms of the expert reports we’ve had to commission. Council has spent what I’d estimate as approaching $20,000 on its independent advice – not to mention hours of staff time. But what about people on pensions or others with limited financial resources? What about young couples who’ve borrowed to the hilt just to take their first step on the home-ownership ladder?

We don’t live under a totalitarian regime in this country – unless, it seems, you need to deal with your local council. Elected officials are supposed to be there as checks and balances and to ensure that the community’s interests are maintained. VALE democracy in local government in New South Wales.

(Laurie Patton is a former journalist and media executive now active in the NFP sector. This article first appeared in Pearls and Irritations.)