Government baulks at the possibility of removing rezoning reviews
This editorial looks at the difficulties the New South Wales Government has had in getting the Planning Legislation Amendment Bill 2019 through the Parliament and identifies potential lessons for future legislative reform.
The Planning Legislation Amendment Bill 2019
In July 2019 the New South Wales Government introduced the Planning Legislation Amendment Bill 2019 (Bill).
The Bill is largely mechanical in nature. Its main purpose is to update cross references in other acts including the Land and Environment Court Act 1979 and the Crown Land Management Act 2016 to reflect the introduction of the decimal numbering system that occurred in the Environmental Planning and Assessment Act 1979 (EP&A Act) on 1 March 2018.
The Minister for Planning and Public Spaces (Planning Minister), Rob Stokes said in his second reading speech for the Bill:
“All the amendments proposed in the bill are minor and non-contentious. The majority of the matters addressed in the bill are consequential to the commencement of other legislation and the miscellaneous matters do not propose any new policy for the New South Wales planning system”.
The only mildly controversial matter was the inclusion of an explanatory note to address some industry concerns about changes to the requirements relating to occupation certificates which are yet to come into effect .
The Bill is typical of the sort of legislation frequently used to oil the machinery of government.
Strictly speaking a stand-alone bill was not required , and some of the changes could have also been picked up through one of the Statute Law Revision Bills designed for non-controversial matters.
Other changes could have been addressed through other means, by say making a State environmental planning policy, amendments to the Standard Instrument (Local Environmental Plans) Order 2006 or an amending regulation – all being actions that do not require the prior approval of the Parliament.
Given the contents of the Bill, the Government could have reasonably expected that the Bill would pass into law without much debate.
The Government, having the numbers in the Lower House, had no difficulty in passing the Bill.
Passage of the Bill in the Upper House
The Bill has been introduced into the Upper House and is yet to be debated.
The passage of such a Bill through the Upper House is potentially far more problematic for the Government.
Since the last election the Government needs five additional votes to pass its legislation in the event there is no support from the opposition.
In terms of voting blocks, the five conservative votes comprising: The Shooters, Fishers and Farmers Party (two votes), Pauline Hanson’s One Nation (two votes) and the Christian Democratic Party, are potentially the easiest way through.
Barring that, the Government needs the votes of The Greens (three votes), Animal Justice Party (two votes) and an independent who was formerly a member of The Greens to pass legislation.
In the Upper House, the Labor Party put forward an amendment that would have removed the rezoning review process from the NSW planning system.
Rezoning reviews were introduced by the Coalition in 2012 through administrative means. They would allow an applicant who is seeking to have land rezoned apply to the Department of Planning, Industry and Environment to have any decision of a council to refuse to progress the rezoning, or the failure to determine the application within a 90-day period, overturned.
While the Government is supportive of the rezoning review, the Planning Minister’s opinions on the subject are mixed. Rob Stokes has previously said, prior to becoming a minister, that the spot rezoning processes is, “the bane of the planning process. More than anything else they erode public confidence in planning” .
More recently, in his capacity as the Planning Minister, he has indicated that he wants to phase out the practice of spot rezonings, saying, “my ambition is a future where spot rezoning doesn't have a role” .
The Labor Party, for its part, took a policy to the last election of removing the rezoning review process, choosing to characterise it as a “back door” to the planning system .
In addition to the Labor Party amendments, Pauline Hanson’s One Nation also put forward amendments that would include an additional object in the EP&A Act to seek to contain the growth of Sydney, to avoid urban sprawl, congestion and a negative impact on government service delivery.
The amendment would also require the Planning Secretary to prepare an annual report to set out the capacity of each local government area in Sydney to absorb additional residents and recommendations for planning controls to ensure the quality of life in those local government areas in not diminished.
The difficulty posed by the proposed amendments
The problem for the Government is that if it wishes to advance the Bill it runs a real risk that the proposed amendments are adopted and that the Bill passes the Upper House in a form that is not acceptable to the Government.
Even if the amendments were adopted and the Bill was passed by the Upper House it would not pass into law, but it would mean that in the Lower House the Government would potentially be forced to vote against amendments that would remove rezoning reviews, contrary to its own existing policy, and provisions that would impose limits on urban sprawl and congestion within Sydney.
The Government response
Industry groups had recommended that the objectives of the Bill be achieved through other means and that the Bill should not proceed if it threatens rezoning reviews .
In response, the Government has indicated that it will not progress the Bill .
What are the implications for other legislative reform initiatives?
The fate of the Bill gives rise to a few questions that are worth asking in the context of the current legislative environment.
For bills that affect matters like planning and building safety (for that matter) that have the potential to cut across the political divide, is it strictly necessary for a bill to be introduced into the Parliament given the numbers and the political beliefs of the Upper House, or can the outcomes be achieved through other means that do not require Parliamentary approval?
If legislation is necessary, what can be done to ensure the smooth passage of the bill? Will it have opposition support? Will the bill be dependent on cross bench support?
Does the Bill give rise to the sorts of policy and legal issues where there is a possibility that the numbers in the Upper House run against the Government?
One potential counter is to narrow the scope of the bill to only deal with very narrowly defined issues and that a broad brush legislative reform programme without much substance is probably not worth the political risk.
Author: Peter Holt
 "Developers beware: Getting ready for the end of interim occupation certificates"
 Notes in the Environmental Planning and Assessment Act 1979 are explanatory notes and do not form part of the Act (s.1.4(13) of the EP&A Act), also see clause 4A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017
 Private Members Statement “Planning and Infrastructure Spot Rezoning”, 24 March 2014 Hansard 2014
 “'The culture needs to change': Stokes targets high-rise development” Sydney Morning Herald, dated 15 May 2019
 “'That is not how you plan a growing city': Labor moves to combat developers” Sydney Morning Herald, dated 12 February 2019
 Letter from the Urban Development Institute of Australia to the Planning Minister, dated 7 August 2019
 Urban Development Institute of Australia, Developer’s Update, dated 8 August 2019
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APPEAL – licensing and regulation – leave to appeal on a ground other than a question of law – whether Tribunal’s decision unjust – whether significant new evidence had arisen since the hearing below
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ADMINISTRATIVE LAW – legal unreasonableness – whether the “non-certification decision” and the panel’s findings were legally unreasonable – Briginshaw standard did not apply – inferences made were reasonably open and logically available – not legally unreasonable – no irrelevant consideration – no apprehended bias – no impermissible fetter of discretion or subjugation of state of satisfaction
CONTRACTS – implied terms – parties agreed to be bound by the University’s By-laws and Rules – no term that the parties also agreed to be bound by the University’s Code, Policy and Procedure should be implied
CONTRACTS – legal unreasonableness – alleged failure to exercise a unilateral contractual discretion reasonably – “non-certification decision” not legally unreasonable
ESTOPPEL – estoppel by convention – mutual assumption – assumptions not supported by the evidence
ESTOPPEL – estoppel by representation – detrimental reliance – representations not made – representations not relied upon.
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Regulations and other miscellaneous instruments
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Children’s Court Regulation 2019 (2019-383) — published LW 16 August 2019
Civil Liability Regulation 2019 (2019-384) — published LW 16 August 2019 Proportionate liability
Crimes (Domestic and Personal Violence) Regulation 2019 (2019-386) — published LW 16 August 2019
Privacy and Personal Information Protection Regulation 2019 (2019-391) — published LW 16 August 2019
Status of Children Regulation 2019 (2019-395) — published LW 16 August 2019
Victims Rights and Support Regulation 2019 (2019-398) — published LW 16 August 2019
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Published by Christine Jones