HON CHARLES SMITH (East Metropolitan) [1.10 pm]: I move — That this house —
(a) acknowledges the current deficiency in community consultation and the absence of third party appeal rights in planning and development processes and decisions during the COVID-19 emergency period; and
(b) notes the consequential erosion of Western Australia’s democracy.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [2.20 pm]: I rise, as my colleague Hon Tim Clifford has already indicated, to support the motion that has been moved. There are three key issues in the motion. It is obviously limited to the COVID-19 emergency and refers to third party appeals as a safeguard against the lack of community consultation in our planning processes and refers to the erosion of WA’s democracy.
The first thing I would like to note in response to this motion is that the lack of third party right of appeal within Western Australia is a longstanding issue that has been raised many times in this chamber over the years by the Greens; in fact, it goes as far back as the Green’s first MLC, Hon Jim Scott. I remember volunteering out of his office in the 1990s on this very issue of third party right of appeal and the need to have that in the system. It is not a new issue and one that the Greens have been absolute stalwarts on.
In WA we have the opportunity for appeal but the only people who can appeal are the first parties. In this case, we are talking about the developers. Developers already have the power to appeal refusals or specific conditions imposed on them. Should a developer have received an approval that should not have been granted, the affected community— in this case, third parties—has nowhere to go. There is no avenue for third parties to ensure that our policies and processes have been followed in the application and decision-making. There is no avenue for seeking a review of any discretionary decisions that may be without merit or in breach of law and regulation. There is no avenue for ensuring that if any cosy relationships have been formed between developers and decision-makers, they can be reviewed and removed from the decision-making process. For all those reasons, third party appeal rights have been part of the Greens’ planning platform for decades.
The Greens are firmly of the view that third party rights of appeal are an essential mechanism to ensure fairness within our planning processes and compliance with policy and strategy. The ongoing lack of these processes within Western Australia has been and continues to be a major concern. It is a major way in which the system, unfortunately, can all too easily skew towards developers at the expense of communities that have to live with those developments. It is patently unfair—I struggle to see how anyone could think otherwise—that developers can seek review of refusals and imposed conditions, but those third parties who will be affected by planning outcomes, potentially every day of their lives, cannot seek a review. That is patently unfair, particularly considering that third party rights of appeal are available in every other state in Australia and have been, in some form, since the early 1970s at the very latest. Somehow, every other state in Australia has managed to deal with the apparently insurmountable issue of third party rights of appeal. I point out the bleeding obvious: we have not seen a reduction in development in other states. The suggestion that somehow allowing people to have a voice in decisions that could potentially affect their lives and homes would prevent development is, frankly, ludicrous. Every other state has managed this and we also should be able to do that.
Third party rights of appeal are often seen as one way of ensuring that the undue influence of donations and personal relationships have some sort of counterbalancing mechanism. They also ensure that when a somewhat dismissive tick-and-flick approach to community consultation has been taken—that does happen a lot; we hear the concerns from the community when that occurs—there is a mechanism to ensure that those valid concerns are properly addressed by a neutral arbiter. Again, it is ridiculous to suggest that people have a full say within those community consultations and therefore that is sufficient. I would bet anything that we all have some evidence of inadequate community consultation around planning decisions in at least one place in our electorate and potentially within this term of Parliament. I have multiple examples of that in the North Metropolitan Region, and it has caused significant disquiet over and again.
I was expecting at least some of this debate to take place as a result of the amendment Hon Charles Smith had originally put to the Planning and Development Amendment Bill 2020 to implement third party appeal rights, so I was disappointed when that amendment was withdrawn. However, I am pleased to see that it is at least getting some dedicated parliamentary time now. I had plenty to say on the amendment at the time and was more than happy to support it. Third party rights of appeal are such a substantial part of a well-functioning and fair planning system that they deserve to have their own time and place in terms of attention in this chamber. We deserve to have them implemented in Western Australia.
Returning to the bill that we previously debated, I remind members that one of the huge concerns going into the debate was that the bill appeared to remove the requirement for community consultation for development applications going through the Western Australian Planning Commission approvals system. However, I once again acknowledge that this was not the intent of the drafters. As a result, community consultation remains a very major concern in every element of the planning process, especially as the planning process remains convoluted. It is complex for projects such as the Ocean Reef marina, which I have been talking about and dealing with since the last state election. I have raised it on multiple occasions during the fortieth Parliament. Talking about the Ocean Reef marina, the process often involves community members attempting to come to grips with what can be hundreds of pages of technical information, often in very short time frames, to provide feedback. When a process has been entered into in good faith, that should not be a problem. However, when good faith is not present, it will definitely be a problem.
Concern over our community consultation mechanism remains, regardless of whether the development application, the scheme amendment, the structure plan or the subdivision application takes place during the COVID provisions of the act or the regulations. Although I acknowledge that this is an older body of work, I note that Judge Trenorden, one of the founding members of the Environment, Resources and Development Court in South Australia, said in 2009 —
I am not convinced that consultation presently is adequate, nor that the community generally understands or is aware of planning policy.
We know that in Western Australia, even in cases when the community is widely consulted, the discretionary powers of a decision-maker can still lead to outcomes that do not match any reasonable expectation. This is particularly the case with decisions pertaining to the heights of buildings that go far beyond any envisaged in the local planning scheme. The obvious one to point to, which has occurred in recent years, is the proposed 3 Oceans towers in Scarborough, which ended up being approved. That project was wildly out of line with community expectations and any of those planning processes that had been subject to extensive consultation and ownership.
Beyond the community consultation elements, there are some clear benefits to allowing third party rights of appeal. Some of the benefits of the system that have been cited in various papers include a reduction in developer ambit claims and an increase in transparency and accountability. Some of the work done on third party appeals shows that third party appeals are often quicker to resolve than first party appeals, and the majority of third party appeals are resolved prior to the State Administrative Tribunal process being fully engaged. I think it is very important to note that third party appeals that make it to court are often upheld in some fashion. This is not a matter of appeals being put forward by people who are just nimbys, as everyone is wont to say, or people who are undertaking vexatious claims; many of those appeals are upheld.
To achieve these outcomes, we need to have a coherent planning system at both the state and local levels. Maintaining complexity and conflict across planning regimes opens up the potential for third party appeals to be used to challenge reasonable decisions, so, of course, we have to ensure that our state and local planning schemes are comprehensive, coherent and complementary. I take this opportunity to once again commend the work that has been done by Evan Jones and the Department of Planning, Lands and Heritage on the green paper for planning reform, which identified the complexity and lack of certainty for everyone involved in the planning system.
When we debated the Planning and Development Amendment Bill 2020, I moved to delete a wide sweep of the ministerial powers that that bill granted. I remind members that those powers included the minister being able to select and advocate for specific projects and to simply declare things legal that would otherwise not be. The solution that this chamber was willing to countenance was to make the exercise of those powers disallowable. Of course, disallowance relies on a suitably diverse and engaged Parliament. Should Parliament become less diverse, that will simply not be a mechanism that will be respected by the public. As we know, a less diverse Parliament can easily occur. Ultimately, it would be preferable if the rules and conditions set by the scheme were able to be appealed by third parties to a body that does not rely on a politician needing to bring forward a disallowance, or for the chamber to agree to it.
This motion also touches on something that I have been increasingly concerned about—that is, the erosion of democracy under the guise of COVID provisions. I have been speaking out about this more frequently, particularly as more hastily drafted legislation has been presented to this place with huge Henry VIII clauses throughout. One of the fundamental tenets of democracy is that people have the right to participate in decision-making that affects their lives. We need to remember that that cannot simply be limited to once every four years or that people choose their government and, effectively, get what they get. We recognise that that is not a fair way to conduct business that will ultimately affect people’s lives. We expect that adequate notice, a fair hearing and a non-biased process be an essential part of any decision-making. That includes, ordinarily, the crafting of legislation that comes before the Parliament for deliberation. One of the ways that we need to ensure that the public gets a say in the laws is for the government to provide sufficient notice so that we, as members of Parliament, can do our jobs effectively—that is, to consult, and, preferably, to consult widely with people who have an interest in or are affected by the legislation before the house.
I recently spoke about the ways in which COVID-related legislation is coming before the house and how unsatisfactory it is for us to make legislation in this fashion in a democracy. Legislation is increasingly coming through with little to zero notice, with wildly insufficient consultation, and no time between introduction and debate for members of Parliament to undertake relevant consultation. The small amount of consultation that has taken place has seen vast improvements to the bills, such as the recent removal of what we understand to be an unreasonable Henry VIII provision in the COVID-19 Response and Economic Recovery Omnibus Bill 2020, which was ultimately passed last night. Probably due to being so undercooked, a lot of the legislation attempts to futureproof itself by deferring large amounts of activity to regulation. There are huge issues when we decide to do that. The process of creating regulations happens outside the sight of Parliament. We have to rely on the consultation done by the government of the day, whatever it may have been, and, at the end of the day, we can only disallow regulations. I have already pointed out concerns with the disallowance process. That will be of even greater concern when Parliament goes into caretaker mode and there will be no capacity for anyone to disallow anything.
The concerns I have about the way this government has engaged with the community started almost immediately, with the debacle of the December 2017 announcement of education cuts. Since then, we have seen a steady reduction in the mechanisms that are designed to ensure that the government is fair and transparent. Questions are routinely being answered poorly or they are not even answered at all. There has been a steady uptick in refused freedom-of-information requests, the State Records Office has been mangled, legislation has been rushed and there has been an overwhelming deferral of powers to regulations. It is deeply concerning that we see this most clearly in the planning and development arena, but we are also seeing it right across the board.
I think this motion is infinitely worth supporting. If anything, I think that the intent of the motion needs to extend beyond the COVID-response time frame. The issues that I have raised about the numerous ways in which this government is undercutting the proper action of democracy need to be addressed. At the very least, the introduction of third party appeal rights to make us consistent with other states around Australia needs to happen to ensure that planning decisions are fair and can be held accountable. It seems like a simple thing to do. Everyone else has managed to do it, and the world has not fallen apart. It defies belief that Western Australia is so special that it cannot even consider it.
Comments and speeches by various members
Division
Question put and a division taken, the Acting President (Hon Adele Farina) casting her vote with the noes, with the following result —
Ayes (6)
Hon Robin Chapple, Hon Tim Clifford, Hon Diane Evers, Hon Aaron Stonehouse, Hon Alison Xamon, Hon Charles Smith (Teller)
Noes (24)
Question thus negatived.