Second Reading
Resumed from an earlier stage of the sitting.
[speeches and comments of various members]
HON ALISON XAMON (North Metropolitan) [8.58 pm]: As was indicated by my colleague Hon Tim Clifford, who is the lead speaker for the Greens on this bill, I, too, have some comments about the Planning and Development Amendment Bill 2020. When I think of this bill, I think of the little girl with the curl because parts of this bill are very, very good, but, unfortunately, parts of this bill are horrid. It is for that reason that the Greens will not support this legislation. Tonight I will go into the very details about why, unfortunately, this bill cannot be supported.
Some elements are part of the orderly progression of planning reform that has been underway for the last couple of years, as my colleague Hon Tim Clifford alluded. I have said multiple times in this place when I have stood to talk about various shambolic processes that have occurred, particularly in my electorate of the North Metropolitan Region, that there is a desperate need for wholesale reform of planning processes. Unfortunately, some elements in the bill that we have been left to debate today are, frankly, nothing but a wild grab for power by the Minister for Planning. That comes on top of previous power grabs by regulation, and I will talk a little about that later. I also note that the government has amendments it will move that would at least allow the Parliament to disallow some of the worst of that overreach, but I am concerned that we should not allow that overreach in the first place.
Like many MPs, I assist constituents to navigate the various levels of the planning system. I have done that in this term of Parliament as a member for the North Metropolitan Region and I most certainly did it repeatedly when I was previously a member for the East Metropolitan Region. What we do know about navigating our way through the planning system is that it is not easily legible. To be honest, most electorate issues that come into my office are about planning matters and not about my portfolio issues, which are mainly mental health and prison issues. Most issues in the north metro electorate are concerns about planning. That tells me that the system as it stands simply does not serve the community. It is widely accepted that there are valid problems with the planning system. Some issues that need urgent remedy include a lack of consistency and efficiency across the different elements of the system, difficulty on the part of all parties to navigate within the system, and a lack of clarity about what is and what is not allowed. I, personally, have had my own nightmares trying to navigate my way through those planning systems, so I absolutely understand that.
I have also made multiple submissions on petitions that I have tabled in this place regarding local planning scheme updates. Members of the Standing Committee on Environment and Public Affairs can testify that I have repeatedly mentioned in those submissions how poorly infill has been done in the past. Too often in the past infill has resulted in a loss of local amenity, with none of the social, cultural and economic benefits that we would expect from well-executed infill. That is frustrating because the Greens are huge supporters of infill. It is absolutely the way to ensure that our city boundaries do not extend beyond what is sustainable.
I note the second reading speech firmly acknowledges that the proliferation of poorly planned and designed infill projects have generated significant community concern and distrust. As I have said, I am a member of Parliament who can stand here to testify to that. I have previously spoken about my overall enthusiasm for planning reform. For example, I have spoken on a number of occasions about the good work Evan Jones did in the planning reform green paper, which built on years of calls for reform prior to that. I look forward to the implementation of Design WA and the finalisation of policies for apartment, precinct, neighbourhood and house design. I have also spoken in the past about my hopes that these policies will have the effect of making desperately needed infill of a much better quality than we have seen in the past. I have also spoken, however, about my fear that those quality design principles still run the risk of being disregarded and at the discretion of the relevant decision-making body.
This bill contains some elements that flow naturally from the review process, and these are the positive elements that my colleague spoke to. But a large chunk of the bill, and hence my and the Greens’ concerns about the bill, flow from those elements that are designed to make it easier for large development projects to get off the ground— the so-called COVID-19 provisions. I will particularly focus on the COVID-19 recovery elements of this bill— that is, specifically part 2 of the bill. I think part 2 of the bill dramatically overreaches on the powers that should belong to any one agency or any one minister. To summarise quickly, large developments worth $30 million or more that provide 20 000 of square metres of lettable area or 100 dwellings or something else entirely that is yet to be specified in regulations will have access to an approval pathway through the Western Australian Planning Commission, rather than the joint development assessment panel process. In 2019, we saw 57 developments meet the $30 million mark and of those, probably 90 per cent met the additional requirements of lettable area or number of dwellings. That would make up roughly 20 per cent of applications that came before the DAPs in 2019, and that includes the WAPC process to determine whether and how to grant approval for a development. That process explicitly sits outside the reach of a range of acts that I note we have deliberately put in place to make sure that we have checks and balances around inappropriate development.
After much community protest, I note that the supplementary notice paper now includes government amendments to ensure that community consultation in some form will take place and that the Environmental Protection Act will still apply fully. But the WAPC is not required to give due regard to the advice it is required to seek from the Environmental Protection Authority, the Heritage Council of Western Australia and the Swan River Trust. The decision-making process explicitly—I will talk more about this—involves input from the Minister for Planning, and due regard must be given to that submission. The WAPC must not determine an application based solely on planning grounds, but it is a planning decision. Despite the WAPC disregarding all other legal instruments while making a determination, the developer is still required to seek ordinary permits. However, if those permits cannot be granted because the development cannot be done within the boundaries of existing legal instruments, the developer is able to apply to the minister to direct the pesky agency standing in the way to effectively stop doing its job under the act, even if the minister’s direction would—this is a classic—result in action or inaction that would ordinarily be illegal.
We now have a number of amendments on the supplementary notice paper that it is intended will ameliorate the effect of this hugely problematic part of the legislation, ranging from my own amendment, which removes this power from the minister entirely, as is proper, to the government’s amendment, which, in response to community outrage, intends that these powers will at the very least be disallowable. I suspect that if that amendment gets up, it is likely that power will be exercised.
Despite the enormous amount of assistance and what we expect to be considered assessment within the approval process, the developer will still have 48 months from the time of approval until significant commencement. One would think that given all the handholding and deliberate overturning of all other legal instruments, a shorter time frame would be more appropriate. Despite the legislation being labelled as a COVID recovery action, it might take up to six years from the time that this bill passes for developments to begin. There is a deliberate setting aside of legislation that we have developed over years to ensure that we retain our natural and built heritage to pass on to future generations and a deliberate deferral to the minister and the Premier in a number of different aspects of the legislation, but we will not necessarily see action any faster than we would have ordinarily.
I am enthusiastic about the pre-engagement process that has been described to me. I think that getting all the decision-makers around a table early and ensuring that foreseeable issues are addressed as early as possible is obviously a very good thing. My only concern is that this process is not actually reflected in the bill before us. Instead, the legislation will give power to the minister to issue directions to other government agencies and bodies to comply with the WAPC approval.
I was also pleased to see that time limits on the decision-making body have been removed. Planning and development is definitely an area to which to the old saying more haste, less speed should apply. It is better to take the time that is needed at the beginning of the process to make sure that the issues are appropriately untangled before they become unsolvable problems and cause a project to fail months down the track, which is a waste of time and money for everybody. I am genuine when I ask this question: could we not have solved the problem of a lack of communication across government departments, which is a genuine issue, in a way that did not take out good governance and turn the whole thing on its head? There must have been a better way for us to achieve that outcome.
I particularly want to talk about some of the concerns I have with the way this bill is presented and how it could potentially facilitate corruption risk. We know that planning and development is an area that carries huge consequences for communities. It can also be extremely lucrative and very dependent upon government policies and decision-making. Every year, when the political donation disclosures come out, the biggest corporate political donors are those who stand to benefit the most from government contracts and lose the most from increased regulation or taxation. If members look at the returns from 2017–18, property developers have remained one of the largest industries providing direct political donations across Australia. They stand with extractive industries as one of the groups with the most to gain and also the most to lose when it comes to issues of government regulation and reform. Unsurprisingly, we find that those industries tend to be amongst the biggest political donors because money, frankly, gets them access. At the moment, access to ministers and their senior staff is one area in which we have the least transparency in Western Australia. Managing the corruption risk in this area poses an ongoing challenge. It is also a very big challenge to manage the risk of a patron–client relationship, in which corruption is much harder to detect, but the prioritisation of a donor’s wants and needs at the expense of the wider community most certainly exists.
I turn now to how risk has been mitigated elsewhere. In some of the eastern states, which have different arrangements and ministers are more immediately involved in planning and decision-making, there is unfortunately a perception of corrupt activity and a history of planning ministers being stood down for poor behaviour in this space. To ameliorate some of that risk in the eastern states, caps and bans have been implemented on political donations from the development sector. Traditionally in Western Australia, we have attempted to mitigate the corruption risks by limiting the amount of direct involvement that the minister and the Premier can have in decisions. The Western Australian Planning Commission and the development assessment panels make decisions and the Department of Planning, Lands and Heritage provides the framework and the structure for that decision-making process. We have deliberately made a policy decision to hold the minister and the Premier at arm’s length, but this bill turns that on its head. Instead, we are pushing towards the minister having much greater input in these very large decisions, but none of the concomitant leashing of the development industry and how it engages with the minister and the political system. I will be moving amendments to reduce the minister’s multiple avenues for influencing the outcome of this decision-making, but the situation is worse than that.
The effect of part 2 of this legislation is that it conflates the profits of developers with the overall good of society; that is a stretch. The WAPC, in determining an application, need not refer to any legal instruments. This means that for the projects referred to this pathway, the legislated requirement to consider a number of acts that ordinarily would affect a development application is being set aside. Although it is possible that due regard might be given to the consultation provided by the agencies responsible for upholding the values enshrined in that legislation, the fact is that the WAPC will not be required to do so. In fact, it will be given something of a free pass not to do that. I hold very grave concerns about what else might be found inconvenient over the period of time that part 2 of this bill is live, given the wide sweep of what may be determined later in regulations. If at some point a government body or agency finds that the legal requirement for public consultation simply will not allow it to issue a relevant permit, the minister will be able to make it legal by just saying so. I do not think that is good governance at all. Therefore, I am pleased that the government has recognised this and will be moving amendments to make the use of these powers disallowable at least, as I have said. However, I maintain it should not be done in the first place.
There is a line between streamlining an application process and disregarding the checks and balances that should apply to ensure that a project will not disrupt community values. Part 2 of this bill falls completely on the wrong side of that line, and I intend to move amendments to that part. The reason that we have different ministers and different legislation to cover the various elements of our systems is to ensure that the experts in each field are able to implement their legislation to the best of their ability. Entire government departments have responsibility for ensuring that they maintain that expertise to ensure that nobody’s pet project can override the protections that are supposed to be, and that the community expects will be, baked into the system.
I believe that the Department of Planning, Lands and Heritage and the WA Planning Commission will enter into this process with every intention of ensuring that community needs are met and community values are protected. I do not intend to ascribe poor faith to these departments. I am commenting on the words of the bill in front of us and what that will enable the WAPC and the Minister for Planning to do. Our responsibility as legislators is to look at the words that are presented to us and determine whether they will enable a framework that we are comfortable with. It is not up to us to simply go on good intentions and assurances. We have to look at the law as it is presented to us and determine whether it satisfies our concerns. Members, this bill does not satisfy my concerns. I have spoken many times in the past about how I am concerned when the regulator and the promoter of an industry are both housed in the same department. This is an issue with mines, for example, that I have been raising for at least a decade. However, this is a substantially worse outcome. That is because the government will not only be able to direct projects onto this pathway, but also advocate for those projects, and then bulldoze any and all objections to those projects. I am not saying that the Minister for Planning will do that. However, the bill as it currently stands means that the minister absolutely can do that. That is appalling. It will be irresponsible of us as a Parliament to allow that to occur.
The WA Planning Commission is supposed to be the deciding body of the streamlined process for the post-COVID recovery. It has been raised with me on more than one occasion that it will be quite hard to ignore a project that has been specifically referred by the minister. It is almost as though there will be an implicit expectation that the project will be approved. It is even harder to ignore the implications of proposed section 275, which strongly suggests that the WAPC will approve projects for reasons that are unrelated to the quality of the planning that has gone before it. That includes ignoring activities that would ordinarily have been unlawful, and approving plans that clearly contravene restrictions that would ordinarily apply. This is clearly an area that is making the community uneasy. I have received quite a bit of correspondence about this, notwithstanding the extraordinarily small time frame that has been available for communities to even become aware of what is in this bill. I note that if we had a history of developers doing the right thing by the community, it would not be quite as concerning. However, people are already anticipating that dodgy developers and dodgy developments will be set on this pathway and approved without sufficient oversight. People simply do not have confidence that that will not happen. I of course respect the planning expertise of the WAPC, and I expect I will also respect the planning expertise of the about-to-be-established development assessment unit of the Department of Planning, Lands and Heritage, which will support the WAPC to assess these applications. However, the effect of this proposed section is to ask the WAPC to approve projects based on reasons outside of planning merit. I have yet to see who will be responsible for holding that expertise for the WAPC, rather than merely being consulted by the WAPC.
During the recent debate on the local government amendment bill, I noted the changes that have been made through the Planning and Development (Local Planning Schemes) Amendment Regulations 2020 in response to the COVID-19 pandemic, and at that time I flagged my concern about the huge swathe of discretionary power granted to the minister under those regulations. I remind members that these regulations basically give the minister carte blanche to issue exemptions from planning requirements under the local planning scheme, with only conditions imposed by the Environmental Protection Authority remaining in force, and that those exemptions can be granted without requiring that the emergency declaration apply to the area covered by the local planning scheme. Further to that, the consultation required under these regulations is that the minister should make reasonable endeavours to consult the Western Australian Planning Commission and Western Australian Local Government Association, but it does not really matter if they do not; it does not really matter if it does not happen. I have to say that between this bill and the regulations that previously passed in relation to COVID-19 recovery, there has been a dramatic transfer of power away from local government and the community and into the hands of the minister. It has taken substantial public outcry to ensure that the government puts community consultation on to the supplementary notice paper. I again acknowledge that losing community consultation may not have been the initial intent of the bill, but it was initially enabled by it. It is just as well we have a Legislative Council that can ensure that the work is being done to make some corrections to bad legislation. What a shame the other place does not do its job, but anyway.
We know as MPs that there is a huge variation in how genuine engagement in community consultation can be throughout the planning process. I have seen some absolute shockers over my time in Parliament, but I have also seen some excellent planning consultation processes and how it can be done really, really well and bring the community along. There is certainly a huge variation in outcomes as a result. Those decisions can often be extremely hard to understand in the context of our strategic planning documents and directions. I am afraid that part 2 of this legislation and the COVID-19-related local planning scheme regulations will further increase community uncertainty. I think they will reduce the safeguards of other legislation intended to protect community values and prevent tipping the balance, and we will now see the balance tipped even further in favour of developers.
The minister said in the second reading speech that the purpose of this bill is to focus on strategic planning, improve community consultation and provide greater consistency across the state and local governments, but the COVID-19-related elements of this bill will not do that—not at all. If anything, those COVID-19 elements will remove certainty, remove consistency and, effectively, extinguish community consultation. I understand from our briefing that it was not the intention to do this, and I believe the briefers. I believe the government will move an amendment to ensure that community consultation on the WAPC pathway will take place, and I will also move an amendment to be sure community consultation will take place.
I have been following the progress of planning reform with some great interest and enthusiasm, because, as I said, it is desperately needed. Anyone who thinks that our current planning processes are working has rocks in their head. The green paper identified that so many of the issues I see causing problems in the community keep coming up over and again. The initial steps that the government was taking to address those issues have largely been positive, but part 2 of this bill is a massive step away from those positive reforms. Those positive reforms originally sought to enhance the governance, transparency and community consultation around planning, but part 2 of this bill has instead increased the possibility of failures of integrity in the oversight of the development industry. It has removed the necessary application of so many of those laws, which are precisely designed to ensure we can pass natural and built heritage down to our children. I am disappointed beyond belief with the COVID-19 response that is embedded in this bill, because planning reform matters. These processes need to be tidied up so that no-one has to go through multiple iterations of the same information and multiple applications for the same project. It is equally exhausting for the community. Every bit as much as it is time consuming, it is expensive for the developers. Community groups should not have to constantly be on edge, making sure they keep an eye on what developers are doing. They should be able to trust that they have a genuine opportunity to provide input and that the input is going to be appropriately considered, and that what is finally proposed will comply with the various strategic documents and planning schemes. People want to know, particularly if they are residents, that what they have signed up for within a scheme where they live is what is going to be in place. However, over and over, this is not what happens. Community groups are instead left to spend resources—sometimes monetary and sometimes sheer energy and time—to fight every step of the way in an attempt simply to gain a fair outcome. Far too often, consultation is merely a tick or a flick at best. Far too often, only the actions of an engaged community actively fighting an inappropriate development ensure that it is ultimately halted or slowed.
The system should be making it easier for everyone to understand how to engage and ensure that everyone is treated fairly. It has taken us a long time to reach what we currently have within the planning system. It is far from perfect and I will continue to advocate for appropriate planning reform. However, the planning system does at least ensure there is some measure of balance between the community’s various needs, whereas part 2 of this bill effectively ensures that we will conflate developers’ profits with community good. Of course, I am not arguing there is not a genuine need for economic recovery. We all know that there is. But I am arguing that the time frames this bill allows for a COVID response are not such a compelling argument that we can justify the expediency in sidelining some of our core values—for example, community consultation. An example from my area that caused me not an insignificant amount of work was the 3 Oceans application. I have referenced this before in this place and I will talk a little bit about it now. Part 2 of this bill explicitly excludes Metropolitan Redevelopment Authority land from the Western Australian Planning Commission approval pathway, but the steps by which the 3 Oceans approval was eventually granted clearly demonstrates why the community holds serious concerns about the over-involvement of the minister and the Premier in the planning process. There was originally genuine consultation with the community and a scheme was widely supported and agreed upon. It was a good scheme. The application from 3 Oceans was therefore rightly originally knocked back for being ridiculously out of step with what was allowed under that scheme. A lot of pressure from the minister and the Premier followed, along with ministerial mediation. The decision-makers at the MRA were replaced by representatives from organisations that had been advocating for the proposal. Surprise, surprise—the second time around it was passed. At no point did the Premier or the minister say, “This proposal doesn’t meet the scheme requirements that were finalised just last year, so go away and make sure you design something that fits.” Instead, they used their power and influence to ensure it was approved. I have seen that happen and seen similar things happen in South Perth and Canning Bridge. I have also seen the long and ugly history of much-wanted development stymied in East Perth and Claisebrook to keep concrete batching plants on-site, and on that note I want to say, “Hanson and Holcim, go. Nobody wants you there. You’ve lost your social licence. Please leave—move on.” Is it any wonder that the community has no faith that this process, with such a high involvement with the minister, will bring about outcomes that will match local planning schemes? It is a process that seems designed to remove the opportunity for the community and ordinary regulators to say no to dodgy development.
I will move several amendments that I hope will ameliorate what is an egregious overreach of the COVID-19 response elements of the bill. I am disheartened that the genuine need for reform to ensure that agencies are working together, issues are identified early, and proposals are sensitive to local areas and community needs has not been resolved in the way that part 2 of the bill proposes to resolve it. Instead of drawing firm lines within which we expect developments to colour, we have instead written into our legislation that they can colour as they choose and the Western Australian Planning Commission and the minister can redraw the lines to suit and effectively bulldoze any other agencies and departments as required. We have already given up substantial amounts of transparency in and oversight of a range of areas to ensure that we can address the range of issues that the COVID-19 pandemic has caused, and those bills have largely come with sunset clauses that ensure the provisions of those bills will effectively disappear once the crisis has passed. But in this case, despite the time limit of the legislation, the community will not be able to move beyond this. The community will be left to deal with whatever development happens to result from this process for decades, if not indefinitely. Planning and the kind of large-scale developments that will be dealt with through this process need to be considered closely and carefully, with the understanding that what we do now will impact the future for decades. It is unacceptable to even contemplate that poor governance can be borne into these processes. As I said, we will be living with the legacy for a very long time, and, despite the best intentions, poor governance is enshrined in part 2 of this legislation. Regarding the sort of overreach and the sorts of powers that we will give the minister and the Premier, we have not even come close to being able to look at any of the sorts of checks and balances that have had to be put in place within Australia, particularly over east, as a direct result of poor behaviour and overreach.
I am concerned that we are seeking to pass legislation that will enshrine some terrible processes. It is very disappointing that we have lost the opportunity to implement all the positive reform, much of which is outlined within the green paper, and instead that we have this cobbled on overreach. I understand that the numbers in this place indicate that this bill is likely to be passed, which is extremely concerning. At the very least, the Greens will attempt to mitigate the worst excesses to the extent that the house will support them, but it is for those reasons that, unfortunately, the Greens will not be supporting this legislation.
[speeches and comments of various members]
Debate adjourned, pursuant to standing orders.