New planning laws that would limit community rights to fight unwanted development in the the courts could spark a constitutional challenge, the Law Society of NSW says.
The representative body for the state’s solicitors also warns the government’s overhaul of the 30-year-old planning system could remove major ministerial decisions from legal scrutiny and is destined for failure if it disempowers the community.
The proposed changes to ”decision review rights” is one of several issues the society has raised in its formal response to the draft laws, which closed to submissions last month.
The society told the government it has ”serious concerns” about a provision in the draft legislation, which it said ”significantly restricts the ability of the community to challenge plans and some decisions even in the case of legal error”.
It said this goes against the stated intention of the accompanying white paper, as one of several points of ”disconnect” between the two documents.
Pauline Wright, chairman of the society’s environmental planning and development committee, said that under this provision in the draft bill, a major infrastructure declaration by the minister could not be contested in the courts.
”If a minister were to make a decision that allowed a friend or associate extensive rights to develop land in the Hunter Valley … and declared it to be a public priority infrastructure project, then that wouldn’t be subject to appeal,” she said. ”I would have thought that’s the very sort of thing we wanted to be the subject of public scrutiny, including scrutiny by the courts.” Former mining minister Ian Macdonald was investigated by the Independent Commission Against Corruption this year for granting mining rights to associates.
Ms Wright said the provision would be open to a constitutional challenge because it was a ”fundamental right” in a democracy that an executive decision should be open to challenge.
”At least on the basis that it was not a reasonable decision to have been made on the basis of all the information available to the decision maker,” she said.
The draft legislation, unveiled by Premier Barry O’Farrell and Planning Minister Brad Hazzard in April, seeks to replace the community’s right to object to individual development applications with greater input into strategic planning. But the society said the value of the ”centrepiece” of the new reforms – the community participation charter that enshrines the public’s role in the legislation – ”is greatly diminished by lack of detail on implementation and enforceability”.
”When you have laws that make communities feel disempowered and disenfranchised, that’s going to fail in the long term,” Ms Wright said.
Marcus Ray, general counsel and executive director for the Department of Planning and Infrastructure, said it would be looking at the society’s submission ”very, very closely”.
‘From time to time there are laws out there that spark constitutional challenges, and that’s often after the fact,” he said.
”This is the whole point of putting 200 pages of legislation out there.”
A spokeswoman for Mr Hazzard said the government was ”taking on board” all submissions. She said that the government ”has kept its commitment to hand back planning powers to councils and communities, starting with the scrapping of the Part 3A laws favoured by the previous Labor government”.
The original release of this article first appeared on the website of Hangzhou Night Net.