Northern Territory Second Reading Speeches

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PLANNING BILL 1999

Mr Speaker, I move that the bills be now read a second time. The purpose of the Planning Bill is to repeal and replace the Planning Act. Honourable members will be aware that the Northern Territory planning system has been under review for several years. This Planning Bill is the outcome of that review. The outcome of several years of work, including considerable contributions from the community, and I take pleasure in introducing it.

As is usual in such cases, certain consequential amendments to other existing legislation are necessary. The Planning (Consequential Amendments) Bill makes necessary amendments to references in various acts and regulations, consequential on the passing of the Planning Bill. It is being introduced accordingly.

Following extensive public consultation, I am now introducing the bill to allow it to lay before this Assembly to provide further time for public comment. I will again welcome the community’s views on the bill, until it is debated in the November sittings. I make the point that this is the commencement of the formal public consultation process normally associated with the passage of legislation and it builds on the informal processes completed recently.

In August I tabled a discussion draft for a proposed planning act, and an accompanying information paper to explain government’s intentions to the community. The purpose of these documents was to obtain the community’s response to the proposed new planning system. I think honourable members will agree we were very successful in this. I thank those people and organisations who made submissions, several of which were outstanding in their consideration of the matters in hand.

Government has considered at length the community’s response to the documents I tabled in August, following on from which, I directed the refinement of the Planning Bill. I announced the changes to the August draft legislation last week and detailed them in a flyer that has been publicly circulated.

These amendments reflect many of the comments received, and this is clear evidence that the government is listening to the community and responding positively.

The government did not agree with all of the matters raised by various members of the community, just as there were differing opinions within the community in relation to several issues. As I have previously said it is not possible to accommodate all views. The objective is to strike a reasonable balance.

Honourable members will be aware that the release of the discussion draft is not the first time government has informally undertaken to obtain the community’s views on planning issues. Last year Mr Earl James was commissioned to obtain the community views on a number of aspects of the planning process.
Mr James consulted widely and received numerous submissions. I imagine that the collating of those views was not easy task as on some topics, quite diverse views were presented. The response to the Earl James report also showed a diversity of views in the community. Clearly it cannot be expected that government would take all of Earl James’ recommendations on board, but if you look closely at what Mr James said in his report, many of his suggestions were adopted far more than the government is given credit for.

It is important that the public record notes that it is a fact of life that there are wide ranging community views about planning. The Earl James report is a compendium of those views and diverse opinions that he collected and compiled for the government to consider.

After I tabled the discussion draft, the Darwin City Council launched a multi-media campaign. While this campaign was deliberately focused on obtaining public support for council’s campaign to increase its role in the planning process, the campaign did stimulate debate in the community and this was a good thing.

Following my announced changes to the Bill, the Darwin City Council withdrew its call for the introduction of this Bill to be delayed. This is a victory for commonsense because changes to the planning process were announced over 2 years ago. I am pleased the council has recognised the government is listening and has responded positively. We must not loose sight of the fact that we have reviewed and are refining the current Act, not starting again.

The recent debate regarding the discussion draft and the response from the community has shown that there are people on both sides of the argument. People who want to see changes to the planning process and people who blame any development decisions which have not gone their way on the Planning Act. It is apparent that many members of the community cannot see the difference between the Planning Act, the planning system it sets up, and the development approvals decision.

I have been aware for some time that many people can only relate at the development level to what they consider to be bad development decisions in their area. Some of the submissions I have received have confirmed that view. I am not being critical of this, I am saying I understand it. In fact, this is one of the reasons I released the Information Paper in August.

I was therefore not surprised that many people believed what the Darwin City Council told them, that they could wake up one morning with a service station next door. This is unfortunate because those people took up the debate from a local government perspective based on that information given to them. I will make further specific comments on service stations later in this speech because I know that otherwise some are going to say ‘What about the Nightcliff service station?’.

I received some 50 submissions from the community in response to the discussion draft and about 30 form letters. The 50 submissions showed that there is widespread support for a single integrated NT planning scheme, but you cannot have a single NT planning scheme without rearranging the rest of the act. This is why this bill repeals rather than amends the existing act. I again point out that much of the content of the current Act was carried forward intact into the proposed new Act.

The Planning Bill does not provide for greater ministerial powers as some would have us believe, but the provisions in the Planning Bill have been reordered so that the division of powers between the minister and the Development Consent Authority have become clearer. The role of the Minister is therefore more accountable as a direct consequence of this increased transparency. Some people have said, how is it clearer? It’s quite simple. The minister exhibits all proposed amendments to the NT planning scheme and then makes all land use policy. That’s at the front of the bill. The bit to do with development approval was further back. Some people have said that the minister should not have the powers to make land use policy. If the minister shouldn’t have those powers, who should? Who is accountable for planning in the Northern Territory? It is the Minister for Planning.

This is no different to any other state of Australia. It is because a single Northern Territory planning scheme is proposed that all the amendments to the scheme can be dealt with in a consistent manner. In the Planning Bill the provisions relating to the amendments have been put together. I think this is an improvement but because we are talking about land use objectives, development provisions and incorporated documents, the system also needs to be flexible enough so that the notification exhibition and consultation processes can be applied as appropriate in each case. We must not lose sight of the fact that we are talking about a planning act that will apply to the whole Northern Territory and must cover all likely circumstances in widely differing regions and situations.

Naturally some of the submissions I received in response to the discussion draft said you shouldn’t have this provision, or you shouldn’t have that provision, but I again make the point that the Planning Act is for the whole Northern Territory. That includes from the Tanami Desert through to Darwin City. As I said earlier, the purpose of some of the provisions criticised in the discussion draft is to have the necessary flexibility regarding notification and exhibition. But this flexibility is on top of a minimum 28 days exhibition period. I don’t consider that this is a bad system but I do accept that this may not have been as clear as it could have been.

The notification, consultation and exhibition provisions relating to the NT Planning Scheme amendments in the discussion draft have been amended so that the minimum process is made clearer in the Planning Bill. A comparison of the 2 documents will show the provisions are better ordered, and I consider the changes have achieved the desired clarity.

A requirement has now been included in the notification provisions so that the relevant local authority will be specifically notified of a proposed NT Planning Scheme amendment which affects land within its area. For such proposals, the local authority will be invited to make a submission. Also, the relevant division of the DCA will conduct a hearing and the relevant authority will be invited to be represented at that hearing to present its case.

Where the minister makes amendments to the NT Planning Scheme, he will be required to make his reasons available to the public.

Overall, I believe the planning system proposed in this part of the Planning Bill is a step towards more consistent and better integrated planning across the Northern Territory.

I will now discuss some development approval issues. The relevant provisions are found towards the end of the Planning Bill.

There were concerns expressed regarding provisions under which the Development Consent Authority can determine that a particular development application is not required to be advertised. The criteria for the application of these provisions were if all adjoining owners had been notified in writing and if the authority was satisfied that all persons who would be materially affected by the proposal had been notified. The purpose of these provisions was to accommodate applications in remote areas where agreement from all owners had been obtained. However, the community was concerned that these provisions would be abused. For this reason, I have retained the provisions as they appear in the current act, where all development applications will be advertised without exception.

As I said earlier, many people are unable to draw a distinction between land-use policy and development approval. Darwin City Council used this fact in its media campaign – that some people tend to be confused regarding what is in the Planning Act and poor development decisions. The legislation sets up the planning system. We cannot have a performance-based planning system and then blame it for poor decisions made. People make planning decisions. Good planning decisions rely on having the right people available to make them. You can have the best legislation and the best planning system in the world, but bad decisions can still result and the community will not be happy.

I am talking, of course, about the Development Consent Authority. As it name implies, under the Planning Bill the Development Consent Authority will deal with development approval matters as well as having a role in conducting hearings on policy matters and any other issue the minister may refer to it.

Local government says that they are best people to be on the Development Consent Authority, that the status quo should remain. As a consequence of the submissions I received, I can only conclude that people in the community do not necessarily share local government’s view. From reading the submissions, I do believe that the community wants to see people on the Development Consent Authority with the right skills and knowledge - the areas of conservation and environment were mentioned specifically in a few submissions - but that these people are not necessarily local government representatives.

As a compromise, the government has agreed that a guaranteed 2 nominees of a local authority will sit on the Development Consent Authority and have a third person to replace an absent member, like the alternate system that now exists. This leaves the remaining 3 members including the chairman to be appointed by the minister. This is a reasonable balance: 2 local government members, 2 community members and a chairman.

I will continue to monitor the performance of the Development Consent Authority, and if I consider that the authority is not performing in a competent and effective manner I will again review the situation. I am considering issuing criteria for membership of the Development Consent Authority to provide guidance as to the type of skills people who are considering expressing their interests in membership of the authority should have.

The discussion draft proposed ‘call-in’ powers for the minister. These provisions were presented to the community by some as being greater ministerial powers. This concept was not popular, obviously. What is not widely known is that in its submissions to me Darwin City Council accepted that the use of call-in powers was legitimate, most likely because call-in powers exist in other jurisdictions. These powers were to be used with strategic sites and/or developments of high economic potential like the East Arm port project. The information paper made this clear. But this is not the type of detail that belongs in legislation.

In response to concerns raised regarding the proposed call-in powers, I have removed them and restored the status quo of ministerial powers to direct the authority in the determination of a particular development application. I believe that this is a step backwards because it overlaps the roles of the minister and the Development Consent Authority. It is not as transparent, given that the Development Consent Authority will still issue the determination. But the government has listened to the community on this point and I have done what it requested.

The exceptional development permit provisions also caused some concern in the community. These provisions are not entirely new, as some would have us believe. They include and therefore replace the existing-use provisions in the current Planning Act. Here again, the government has listened to what the community said and made some changes to the provisions. Unchanged is the requirement that any proposal to use these powers will be exhibited in the same manner as amendments to the NT Planning Scheme. In cases where a land use would otherwise not be permitted in terms of the development provisions, and the DCA is the consent authority for that area, I have included a requirement that the DCA will hold a hearing and provide a report to the minister.

Some people saw a ambiguity in the discussion draft regarding exhibition of such proposals. This ambiguity has been removed. All new exceptional development permit applications will be exhibited for 28 days. They will never be not so significant as not to require exhibition.

Also, it has been made clear in the bill that the minister will only grant an exceptional development permit for an otherwise prohibited use where it is preferable to amending the NT Planning Scheme. While this was always the intention of these provisions, I hope the changes will clarify the intention and allay the concerns expressed to me.

In the Planning Bill, the planning appeals process has undergone major changes from the current system. The proposed planning appeals system did not attract comment in the majority of submissions. Some persons had problems with the detail of it, but other than that it was widely accepted as an improvement on the current system. I too believe that the appeals system proposed in the bill can only be better than the existing system, particularly in terms of how long it takes a decision on an appeal to be handed down. It is expected that the compulsory conference at the start of the process will allow many appeals to be dealt with expeditiously by mediation rather than in an adversarial environment.

Many submissions supported a process which includes unlimited third-party appeals. A view that anyone should be able to appeal a decision of the Development Consent Authority was promoted. There have been numerous public statements that a right of unlimited third-party appeals was being unreasonably denied to Territorians and that unlimited third-party appeals are the norm in all states of Australia. Neither of these is the case. This is another example of facts being misrepresented. The reason that unlimited third-party appeals are not the norm in any state is simple - such a system does not work. That is why this government is not supporting the notion. I am not saying that the government will never look at the option of third-party appeals, just that we have considered this matter and have not been convinced that any of the models of third-party appeals produced to date are appropriate for the Territory. In summary, we will have the best public consultation processes in Australia and I remain to be convinced that third-party appeals are necessary.

I have spoken about the Planning Act, the planning system and development approval, and how people have trouble determining the difference between these things. Let us look at the outcomes for both ends of planning - the land-use policy at one end and a specific development being constructed at the other - and see how they interact with the community.

A good starting point is the example of the Petrol Plus service station at Nightcliff. This was not a development application but a development constructed on land which sat vacate for many years until the market was right. The zoning permitted a service station, among many other things, to be constructed as of right on that land. This development attracted a lot of attention. Many people were asking why was this allowed to happen. Of course, the Planning Act and the planning system got the blame. But if you want to blame something, it should be the Darwin town plan, not the Planning Act and not the development approval process. The Planning Act does not deal with this level of detail and the NT Planning Authority did not have any role of approval.

As a result of this development, town plans were changed and service stations are now a consent use across the Territory. So you won’t wake up and find a service station next door.

Ms Martin: Unless you agree.

Mr BALDWN: Unless the Planning Authority agrees. As well as that, as a consent use there will be a minimum period which will be a mandatory minimum 14-day public advertising period for developments.

The real issue is not service stations but incompatible land uses. I accept that having a service station built so close to a block of flats can only be expected to cause conflict. So how can this be fixed so that such things don’t occur in the future. It can be expected that as development pressures increase as the Territory grows, there will be more potential for land use conflict.

Honourable members with an interest in planning matters will be aware that I recently placed residential zone interface land-use objectives and guidelines on exhibition. These are examples of the types of documents which could form part of the Northern Territory planning scheme in the future. So far, I can only say that the response to these land use policy documents has been disappointing. I received no submissions before the 11 October closing date. This is despite briefing representatives of various suburban community groups on their content. This is the planning process and this is the community’s opportunity to be involved. The community is demanding greater involvement in the planning system yet when given the opportunity, there is no response. I am hoping the community will be more responsive to the proposed Rapid Creek Planning Concepts and land use objectives. These are on exhibition until 1 November and so far I have had favourable feedback from the community on this policy. It remains to be seen however whether this will be express the community submissions I receive.

I do not expect that the bill I have introduced will meet all of the community’s expectations. Once again the planning process put forward in this bill attempts to strike the right balance between the prescriptive and performance based planning. It is not practical to implement all of the changes recommended by Earl James in his report. However, the bill will give the community wider opportunity to be involved in the planning processes in both land use policy development and in development approval. If the land use policy is right to start with, the development consent process should be relatively straight forward and the community’s desire for greater certainty in planning and greater transparency in the process will come very much closer to being achieved. I commend the bill to honourable members.

Debate adjourned.

 

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