Mark Parnell LLB BComm MRUP

1. Introduction

"Inevitably, there will continue to be tensions between the desire for a genuinely participatory and inclusive planning system and the attempts of the more powerful groups in society to promote their interests. How we deal with these tensions will determine the sort of democracy - and republic - that we become."

Whilst the planning and development control systems in the various Australian jurisdictions all provide for some degree of public participation, there is a growing body of evidence that the tension between developers and communities will be dealt with by the "politics of avoidance" or the "pragmatic curtailment of participation"

The focus of this paper is on the formal (ie. legal) participation rights that enable members of the public to comment on, appeal against or otherwise participate in the planning process and the assessment of developments. Various legislative fast-track techniques are examined, along with the stated rationale for the measures as shown in the Hansard records of Parliamentary Debates. Special attention is given to "major developments" under the Development Act 1993 (SA).

2. What is fast-tracking?

Fast-tracking is one of those terms that defies (or at least does not benefit from) precise definition. The term can be used in both an approving and disapproving sense. In whichever context it is used, it basically means, "doing something quickly or faster than normal". In this paper, the focus is on the diminution of rights of public participation that often accompany fast-track processes.

Another difficulty in defining fast-tracking is that it is a relative concept. This means that in a jurisdiction where there are extensive rights of public participation, any diminution of those rights can be labelled fast-tracking even though the resulting opportunities for public participation might still be far superior to those in a neighbouring jurisdiction that excludes public participation as a normal part of its processes. For this reason, this paper looks at the actual legislative techniques used to fast-track favoured developments rather than a detailed analysis of the strengths and weaknesses of public participation arrangements in the jurisdictions studied.

3. Public participation

‘Public Participation’, like ‘fast-tracking’ defies accurate definition because it represents a range of activities rather than a single identifiable activity. Public participation may consist of as little as the provision of information to the public about a development, or it may extent to direct community control where citizens have an effective right of veto over decisions made by Councils, Ministers or bureaucrats.

The range of formal avenues for public participation in planning and development assessment includes a range of relatively "soft" rights, such as the right to make a submission, as well as "hard" rights, such as the right to lodge an appeal or challenge the adequacy of the decision-making process in the courts.

All Australian jurisdictions studied, provided a legal basis for most of the following types of public participation:

• Right to participate in formulation of planning policy
• Right to access to information about developments
• Right to object or make submissions about developments
• Right to obtain reasons for a decision
• Right to appeal against development approval decisions (merits review)
• Right to challenge decision-making process (judicial review)
• Civil enforcement of planning laws

Where fast-tracking techniques are adopted, these "rights" are often diminished or removed. For example, in South Australia, once a development has been "called-in" by the Minister as a "major development", all the "hard" participation rights (merits appeals, judicial review and civil enforcement) are removed, but the "soft" rights such as access to information (eg. through an EIS) and the right to make a submission are improved.

4. Techniques for Fast-tracking development assessment

All the fast-track methods identified in this paper are variations on two themes. Either, they provide for different rules to apply to selected developments, or if the rules stay the same, the fast-tracking method is to change the identity of the decision-maker (usually to a political person or appointed body). Examples of the first approach include ‘Indenture’ or ‘Franchise’ Agreements such as the Roxby Downs (Indenture Ratification) Act 1982 (SA) and ‘Project-oriented’ Development legislation such as the Australian Formula One Grand Prix Act 1994 (SA). An example of the second approach is the use of ministerial "call-in" powers.

Call-in powers

The most commonly-used method of changing the decision-maker in development assessment is the use of ministerial "call-in" powers. In South Australia, the Minister can call-in a development of "major social, economic or environmental importance" to him/herself or can call-in other types of development to the Development Assessment Commission in prescribed circumstances.

In either case, the result is that the assessment of a development is taken out of the hands of a local council and determined either politically, or by an appointed (cf elected) body. In the case of "major development" call-ins, the range of provisions against which the development is assessed are also changed. Most significantly, compliance with the relevant Development Plan becomes advisory rather than mandatory.

It should be pointed out that in SA, the Ministerial call-in power is the only trigger for formal Environmental Impact Assessment (EIA) under the Development Act. This means that in the declaration of a "major development", there is a direct trade-off between the thoroughness of the assessment process and public participation rights such as merits appeals.

With local council amalgamations and the increase in professional planning staff in local government, councils are arguably now better placed to handle the assessment of some large developments. The State government however seems reluctant to allow Councils to take a greater role in this area and has instead increased the range of circumstances in which Councils can have development assessment responsibilities taken away from them.

Local Government often resents the use of call-in powers for medium-sized developments because it sees itself as quite capable of making a proper and thorough assessment and that it is more responsive to community needs.

For example, the Lord Mayor of Adelaide was critical of the decision to "call-in" the redevelopment of the Memorial Drive Tennis Centre away from the Adelaide City Council under s.46. Her Worship was reported as saying:

"I’ve always believed that planning should be carried out in a normal fashion and that fast-tracking is not necessary. I’ve always regarded the [State] Government with great suspicion when it comes to understanding the cultural, heritage and tourism significance of the City’s Parklands."

Incidentally, whilst the use of "call-in" powers for major developments may be regarded as "fast-tracking" in that some public participation rights are curtailed, this does not necessarily mean that the process of approval is "faster". An examination of the 34 Environmental Impact Statements (EISs) completed under the South Australian Planning Act from 1982 to 1993 showed that the shortest overall time from declaration to decision was 6 months and the longest was five years, with two years being about average . No doubt these average times will come down once greater use is made of the new "quickie" forms of EIA (Public Environment Reports and Development Reports) introduced in the 1996 Development Act amendments.

1. Exclusion of merits appeals

Almost all jurisdictions (including South Australia) exclude merits review of development approval decisions for major developments, usually following the exercise of ministerial call-in powers. This exclusion usually applies to both developers and third parties and is usually justified on the basis that where decision-making processes are thorough, there is little to be gained by revisiting the process and all the evidence, on appeal.

2. Exclusion of Judicial Review

So far, the only Australian jurisdiction that has expressly excluded the general common law right of judicial review is South Australia. The following "privative" clause was included in the Development Act in 1996.

48E. No proceeding for judicial review or for a declaration, injunction, writ, order or other remedy may be brought to challenge or question-

• (a) a decision or determination of the Governor, the Minister or the Major Developments Panel under this Division; or
• (b) proceedings or procedures under this Division; or
• (c) an act, omission, matter or thing incidental or relating to the operation of this Division.

Note: "this Division" means Division 2 of Part 4 - ‘Major developments or projects’

Despite the landmark nature of this measure, the passage of this legislation was not controversial in terms of the major political parties and attracted little attention in the media. The only opposition to the legislation came from the Australian Democrats inside the Parliament and a range of conservation and legal groups outside the Parliament

One reason for the smooth passage of this provision was that most politicians assumed that, despite the broad wording of the Clause, the provision would only operate to prevent legal challenges to development approvals based on minor technical and unintended breaches of the Act.

The Government understands that [the privative clause] would not stop Supreme Court action being taken where there has been a blatant abuse of process, such as the halving of the public consultation period for an EIS as specified in the Act. The government really cannot, through a judicial review exclusion clause, be able to breach the provisions of an Act and expect people not to take action against the Government.

Whilst there is a line of legal precedent supporting this view, there are also two recent High Court cases where privative clauses have been upheld in circumstances which indicate that the ouster of judicial review in SA may be broader than either of the major political parties were prepared to admit. Unfortunately, these cases were not decided until after the legislation had passed through the Parliament.

Critics of the provision argued that the right to insist on due legal process being followed in development assessment is fundamental to public confidence in the development system and that the abolition of this right downgrades all other aspects of community involvement. Even if seldom invoked in practice, the right to judicially review administrative decisions is a silent sentinel that keeps governments accountable and makes tyranny and abuse of power less likely.

Whilst Courts that are interpreting legislation will usually ‘bend over backwards’ to ‘read down’ a privative clause, the clear meaning and intent of s.48E of the Development Act is such that it would be difficult to challenge any but the most blatant abuses of power, if at all.

3. Retrospective legislation

Even where legal challenges against development approvals are successful, Governments can still seek to facilitate the development by retrospectively validating any defects in legal process identified by the Courts.

One example of this approach is the NSW Environmental Planning (Permissible Mining) Act 1996. The sole purpose of this Act was to validate a State Environmental Planning Policy (SEPP no.45), which had earlier been declared invalid by the NSW Land and Environment Court. The stated purpose of the legislation was to ensure that the Bengalla Mining Co. Pty Ltd coal-mining development project could succeed, however the legislation was not restricted to that single project and can now be extended to all mining proposals in the State

In South Australia, retrospective enabling legislation was used in an attempt to facilitate the Ophix tourist development at Wilpena Pound in the Flinders Ranges. In a long-running dispute over the project, the Australian Conservation Foundation and the Conservation Council of SA had unsuccessfully challenged the legality of certain planning approvals and were awaiting the outcome of an application for special leave to appeal to the High Court. The State Government, fearing an adverse finding (or simply seeking to expedite the project) passed legislation to retrospectively cure any defects in due legal process that may have taken place in the development approval process.

Whilst this did not technically prevent the High Court challenge from proceeding, it effectively made the case redundant and the challenge was dropped. Interestingly, despite every legal impediment to the project being removed, the proposed tourist resort did not eventuate because the developers were unable to attract finance. It is unclear whether this failure to attract finance was due primarily to the level of conflict and delay or whether it was because the project lacked merit or was inherently risky.

4. The rationale for Fast-tracking

In justifying fast-track legislation, members of Parliament in all the jurisdictions studied relied on a similar range of arguments.

5. "Public participation delays or discourages development"

In South Australia, analyses by Harvey (EIA) and Hodgson (third party appeals) seem to support the contention of Leeson and others that problems with development are, in the main, unrelated to the use of third party or citizen rights.

Nevertheless, in all the jurisdictions studied, rights of public participation (especially appeal rights) were cited as real or imagined disincentives to development. The removal or watering-down of those rights was often seen as a necessary step to attract new development and jobs in an investment environment that is increasingly competitive.

6. "Fast-tracking is democratic"

A common political justification for fast-tracking is that it is inherently democratic. This argument holds that the will of the people expressed at the ballot box should not be thwarted by the actions of disaffected minorities and unelected Judges. Typical of this approach is the claim of support from the "silent majority".

"We could have done something with Kangaroo Island, Wilpena Pound, Victor Harbour and Mount Lofty, but we did not because we had 40 people with placards standing there saying , "We don’t want it" when one million people did want it."

7. "NIMBYs and LULUs"

It is claimed that fast-tracking is sometimes necessary to thwart the negativity of NIMBYs (Not In My Back Yarders) in relation to LULUs (Locally Unwanted Land Uses) . This argument accepts that nobody wants a toxic waste dump in their neighbourhood, therefore the greater public good requires government decisions that are beyond challenge.

8. It’s all about "perceptions"

One of the most common themes throughout the parliamentary debates on fast-track planning legislation was the idea that "perceptions" are as important as "facts" in influencing development and investment decisions.

The message [developers] are getting loud and clear is, ‘Avoid South Australia. You will tie up your money. Not only will it take a long time to get an answer, but, even when you get one, it will be appealed left, right and centre, and money will be tied up which could be used for earning other money in developments in other States’."

On the other hand, the question has also been raised as to whether perceptions about existing development approval problems really do exist in the minds of developers or whether they are simply "talked up" by those wishing to justify fast-tracking.

"There seems to be a problem in South Australia such that a few people sit around a table over their Chardonnays and share mythology about what is going wrong - and it is mythology. ... I do not believe the government can produce a shred of evidence to support what the bill contains."

Even where there is concrete evidence showing that public participation is only a very minor factor in development delay or failure, politicians still justify responding to the "problem" as if it was real.

In Victoria in 1993, for example, less than 2% of development applications resulted in appeals and less than a third of those involved third parties. Whilst the Victorian Planning Minister accepted this analysis, he could still justify the use of fast-track techniques on the grounds that the "reputation" of the planning system was at stake:

"It is common ground that the number of annoying or inappropriate appeals against developments is a small percentage of the total number. But planning processes can be brought into total disrepute when appeals are made on the second-last day possible, delaying procedures to the maximum in an attempt to wear down another small person."

In South Australia, research has shown that there is:

"conclusive statistical support for the proposition that third-party appeal rights do not represent a significant potential source of frustration or delay for developers."

Likewise, in South Australia, the right to seek judicial review of major development decisions has also been defended on the grounds that it has not been shown to cause developments to fail.

"The fact is that projects that have failed have not failed because of judicial review, and the Government simply will not be able to find a case where that has happened. The have failed for a host of other reasons - more often than not it has been for reasons of finance."

At one level, it can be argued that it does not matter whether the statistics support the perception, because perceptions, like superstitions, do not need to be based on fact to influence behaviour. When (then) South Australian Planning Minister, Ashenden, was quizzed by the opposition in Parliament about whether there was any statistical information concerning delays or other problems that justified some of the fast-track provisions being included in Development Act amendments, he replied:

"I impress upon members opposite that if they talk to investors or developers, not only in South Australia but interstate, the image, impression or whatever one wants to call it, of South Australia, is that it is a State to avoid at all costs."

9. The Race for the Bottom

A fear often expressed by conservationists is that States will increasingly try to outdo each other for the lowest standards and compliance costs to attract new investment. In this climate, it only takes one State to introduce fast-track measures, for other States to be put under pressure to follow.

New South Wales now tends to compete with Victoria. It is obvious that Victoria has streamlined its approval system and if New South Wales is not careful it will become a backwater. ... If New South Wales has too much red tape people will simply give up and go to Queensland or Victoria. That will result in a loss of development projects, a loss of jobs and an economy lagging behind the economies of other States.

Victoria’s fast-track reforms introduced in 1993 were also regarded as the chief threat to development in South Australia

"If you were a developer or investor considering developing or investing, you would develop in a State such as Victoria where legislation gives the minister far greater powers than I seek in this place".

A logical extension of arguments such as these is that the development assessment processes in Australia should not be any more complex or time-consuming than those of our competitors. This argument is raised in other areas of society as well, such as wage rates or environmental standards, however it rarely attracts much political support. Very few people in Australia would accept that we should compete with our Asian neighbours by paying Indonesian wage rates or accepting Vietnamese pollution standards.

Despite the rhetoric of politicians, it may be, that in the real world, locational choices are not generally influenced by the development assessment regime. According to the Business Council of Australia:

"The decisions as to where the project will be established go to many other considerations than simply the environmental consideration. There'll be the access to the resource, there's the tax and other environments within which the financing of the project needs to be undertaken. The fact of an environmental impact procedure being different from one State to another will be relatively marginal to the locational choice."

10. Abuse of process by trade competitors

One reason that is often advanced for excluding or limiting rights of appeal or judicial review in development matters is that the Courts are being used for purely commercial purposes by trade competitors to delay the entry into a market of a business rival.

It is difficult to quantify the extent to which this practice occurs, however the problem is certainly perceived to be real amongst some politicians. In fact, this was the main justification for the introduction of the major development privative clause (s.48E) into the SA Development Act.

"[This clause] precludes legal challenges to the Supreme Court on procedural matters. ... This provision has been included because of recent trends by commercial competitors ... to initiate Supreme Court challenges not for any development or planning reason but purely and simply to frustrate a competitor entering the area. Such challenges have not been concerned with the planning issues, but primarily with stopping the competitor.

Whether or not there is a real problem of abuse of process by trade competitors, the implications for public participation are that genuine public interest litigants may be shut out of the Courts if appeal or judicial review rights are scrapped, or if restrictive standing requirements are introduced to stop trade competitor actions.

One option for dealing with trade competitors whilst leaving the rights of other citizens intact is to allow assessing authorities and appeal bodies to investigate the motives behind a representation or appeal and dismiss those that appear to be solely commercially motivated.

It can be questioned though, whether trade competitor interests can be easily separated from the interests of other members of the community, or whether challenges based on competition can really be dismissed as "non-planning" issues.

5. Conclusion

There is no doubt a level at which the benefits of public participation in development assessment begin to be outweighed by the cost of that participation. This includes the cost to developers, regulatory authorities, Courts and the public themselves. Ultimately, decisions still need to be made, whether or not community consensus has been achieved. Where one draws the line under public participation ultimately depends on one’s political or philosophical perspective - in particular in relation to the nature of democracy (ie. elitist vs participatory theories).