Transparency in the NSW land use planning process

The NSW Government and the local government sector are engaged in a battle over government proposed changes which will significantly increase its power to intervene in the planning decisions of local councils, as illustrated in this article in yesterday’s Sydney Morning Herald.

When the State Government exercises planning powers, just how transparent is the process?

We noticed recently a newspaper advertisement concerning the exhibition of an environmental assessment of a proposal under consideration by the Minister for Planning for the Australian Museum in College Street Sydney. The proposal has been called in by the Minster because it involves capital investment of more than $5 million, bringing it within powers granted to the Minister in changes to the Environmental Planning and Assessment Act last year.

The advertisement invited submissions and included a note: “Under Section 75H of the Act the Director General is required to send copies of submissions or a report of the issues raised in those submissions to the proponent, and to any other authority the Director General considers appropriate, but the names and addresses would be withheld. If you do not want your submission to be made public, please state this in your submission”.

Given the fact that local councils have been urged to treat submissions on development applications they consider as documents available for public inspection, we were intrigued to find on inquiry that the Department of Planning does not make submissions on a major development available for public inspection as a matter of routine. The Department says it does not identify those (other than government agencies) who make submissions “on privacy grounds”. Remarkably this extends to submissions by corporations or interest groups.

Apparently if you make an FOI application for the documents it will be dealt with in accordance with the Act’s provisions.

When dealing with major proposals of the kind currently within the powers of the Minister or to come within those powers as a result of changes now before Parliament, there is a strong case, in the interests of transparency, for submissions to be available for public inspection.

There is no privacy problem if people are informed about the use and disclosure of personal information at the time a proposal is advertised, although there is a need to provide for special circumstances where a person's identity should not be publicly disclosed. Views about a proposal are not personal information in any event.

There is nothing in the Environmental Planning and Assessment Act that requires submissions to be made publicly available. It seems in Planning, they stick strictly to the law but they might want to check with others such as the NSW Ombudsman (see the Ombudsman's views about public access to submissions made to a council - paragraph 7.1.10 and following in his FOI Policies and Guidelines) and the ICAC who advocate transparency in the process.