A framework for corruption
On Thursday, Planning Minister, Dave Tollner made a decision to spot rezone a large parcel of land in Darwin’s Gardens precinct. This decision, along with many others over the past 12 months have generated significant debate in the community about the appropriateness of the NT’s planning laws. While an anti corruption body might be the only way to interrogate planning decisions past, the legislative reforms discussed in this article would go along way to ensuring a cleaner and more transparent future.
In 2013, former NT Planning Minister, Peter Chandler is quoted as having said “it’s important the public are given every opportunity to engage in the planning process; it’s how we ensure good development and guarantee faith in our planning policies”. If that is true, why do we currently have laws that, to a great extent, exclude public participation in the planning process and why is the public’s faith in our planning processes so very, very low?
This is not an easy question to answer because there are some very easy fixes to this problem; and it’s serious problem.
The NSW experience shows, that non-transparent planning laws have the potential to dangerously erode public confidence in the government that leads them. What leaves me scratching my head is why there is no political will to introduce legislative amendments that will tear down the current status quo in NT planning laws, a status quo, which provides a framework for corruption.
In NSW, development applications and land rezoning has consistently received some of the highest numbers of complaints to the Independent Commission Against Corruption (The Commission). The Commission, in a 2012 report however confirms: “this high ranking in complaint numbers, however, does not directly correlate with evidence of corruption. Many complaints received by the Commission are from members of the public seeking to voice their unhappiness or unease with a planning decision”.
What this shows is that a system that is conducive to systemic corruption fosters ill will and mistrust in the community, even in the absence of actual corruption. Because of this, laws should contain the strongest possible safeguards against corruption and build, rather than undermine, public confidence in the government.
In 2012, the Commission released a report titled Anti-Corruption Safeguards and the NSW Planning System. That Report recommends six key “corruption prevention safeguards”. Those recommendations are just as relevant and as necessary in the Northern Territory as they are in NSW. The report recommends that planning laws:
• provide certainty by articulating rules that are not departed from;
• balance competing public interests, including environmental, social and economic outcomes and, where interests are to be placed above others that that be clearly articulated in legislation;
• are transparent by ensuring the public has meaningful information about planning decisions;
• are straightforward;
• provide meaningful community participation and consultation; and
• have broad merits appeals.
All of the above recommended features are found wanting in NT planning laws. I provide two examples by way of illustration:1. Broad merits appeals
NT Planning laws contain a shocking disparity between the rights of appeal afforded to applicants, vis-à-vis those provided to objectors. Redressing this by providing broader third party review rights to objectors would (overnight) provide a significant disincentive for corrupt decision making by consent authorities (including Planning Ministers). It would also improve public confidence in planning in the NT and result in greater public acceptance of the process.
The Commission states “Third party appeal rights have the potential to deter corrupt approaches by minimising the chance that any favouritism sought will succeed. The absence of third party appeals creates an opportunity for corrupt conduct to occur, as an important disincentive for corrupt decision-making is absent from the planning system.”
2. Spot re-zoning & Exceptional Development Permits
Spot rezoning is, generally speaking, bad planning! Spot rezoning is the process of singling out a parcel of land and changing that area’s zone, allowing it to be used in a way totally different from what the Planning Scheme would otherwise allow. It is the very antithesis of well-considered planning.
There are times when spot rezoning can be justified, and may in fact be necessary but this is the exception to the overwhelming general rule. Spot rezoning should not be used in the absence of compelling reasons, it certainly should not be used as a backdoor for developers to avoid contemplated uses of land, which they have purchased.
Spot rezoning should be rare, and there should be the opportunity for independent review of any spot rezoning decision.
Another mechanism used by Government to authorise land use outside of the accepted Planning Scheme is the grant of exceptional development permits (EDP). In the NT the Planning Minister can, without any real oversight, issue an EDP allowing land to be developed in a manner that, save for the EDP, would be unlawful. The subjective discretion held by the Minister is a broad one and, importantly, can only be challenged via a highly risky (and costly) judicial review application in the Supreme Court. This practically unimpeachable discretion held by the Minister is apt to produce a perception of political and planning favours.
Former NSW Planning Minister, Brad Hazzard, summed up the situation quite nicely in 2012 “Back room deals have real world impacts. It’s time to systematically eliminate opportunities for developers to influence planning decisions.” In the NT, that time is well overdue.