Ignoring the obvious reversion to bad old NSW planning habits, most have hailed this bill as “the biggest overhaul of NSW planning laws in 50 years” that would “curb the maze,” writes Elizabeth Farrelly. Image: Collage by Tom Grant
You’d think the thing we call “planning” might centre on the public interest. You might even think that the public interest is the only reason to have a planning system – or indeed, a government. What, then, should we make of a planning “reform,” a self-declared “public bill” designed to concentrate power in ministerial hands while explicitly banning, for the most dramatic developments, consideration of the public
interest? Can this possibly end well?
The new New South Wales Environmental Planning and Assessment (Planning System Reforms) Bill 2025, which slid through parliament in November with bipartisan support and scarcely a murmur from the press, is “trust me” legislation of the worst kind. It stands to destroy everything we love about both city and countryside
while benefitting no one except the money boys.
Launching the bill in September, Premier Chris Minns brandished butcher’s paper diagrams of mum-n-dad developers struggling to renovate. He insisted he was “clearing the path” for the little guy. Of course, he would say that. Less explicable is the way news outlets have trotted tamely along. Ignoring the obvious reversion to bad old NSW planning habits, most have hailed this bill as “the biggest overhaul of NSW planning laws in 50 years” that would “curb the maze.”
Even the Opposition went limp, momentarily abandoning its habitual bleating about heritage and canopy to support the government push. Developer lobby groups were positively cock-a-hoop, with the Urban Development Institute of Australia applauding this “significant and much needed step towards a more pro-housing planning system,” and the Urban Taskforce’s Tom Forrest calling it “a solid step in the right direction,” praising both the government and the Opposition for “staring down the NIMBYs.”
This lineup alone should ring alarm bells. So should the fact that, despite months of drafting, the public knew nothing of this massive reform until the very day it whizzed through parliament, introduction to second reading, in a few short hours.
At macro level, the bill makes four major changes. It ratifies the existing Housing Delivery Authority, a rezoning troika which has already, in six months, fast-tracked tens of thousands of potential dwellings (most of which remain embarrassingly unbuilt). It creates the Development Coordination Authority – Minns’s much-touted “single front door” to the planning system. It establishes a new “Targeted Assessment
AA Prize for Unbuilt Development” pathway almost wholly dependent on ministerial discretion. And it loosens the “complying development” provisions to give automatic “deemed approval” – again, unprecedented – after a mere 10 days.
In each case the effect is a stringent exclusion of irksome externalities like councils, independent agencies and the public, effecting a massive concentration of power in a
few hands (those of the planning minister and their appointed staff). Even the Development Coordination Authority, which sounds like a new agency absorbing the concurrence powers of other agencies in areas such as environment, water, heritage and bushfire, is in fact just a single person – the secretary of planning – who is also on the Housing Delivery Authority troika. Who appoints that person? Who’s their boss? Who gets to delegate them potentially unlimited powers? Good heavens, the minister.
Most breathtaking of all is the new Targeted Assessment Development pathway. For any reason, or for none, the minister can declare a proposal a Targeted Assessment Development. Once that happens, it becomes immediately illegal for the consent authority (be it a council, an independent panel or the minister himself) even to consider environmental, social or economic impacts, the suitability of the site, or the public interest.
Let me repeat that. We have a planning system that, in the most major and controversial of cases, explicitly bans consideration of the public interest. Minns calls it “one door to knock on.” More accurately, it’s a potential big red “Press Here for Favours” button planted squarely on the ministerial chest.
We’ve been down this road before, of course – far enough and often enough to know that such a concentration of discretionary power is as democratic as any totalitarian measure, and as dangerous. It’s also a huge and long-recognised corruption red flag. Every state has its corruption history, especially in planning, which can deliver huge windfall profits. Since the days of the squatters, though, NSW is especially inclined to see planning as a mechanism for doling out such windfalls amongst developers and landowners. In NSW, you can still summarise this risk in a single name: Eddie Obeid
(but also Ian Macdonald). Before now, the most recent iteration of this story was the notorious Part 3A of the NSW Environmental Planning and Assessment Act 1979, which gave the minister discretion to “call in” any particular development for no particular (publicly declared) reason.
In 2008, Obeid was Labor backbencher and kingmaker in the Carr government when he conspired with planning minister Ian Macdonald (also later jailed, along with Eddie’s son Moses) to use his immense discretionary powers under the act to make decisions that delivered vast unearned profit to the Obeid family interests, including $30 million from a Bylong Valley mining tenement. Obeid, now 81, was jailed in 2021 and released earlier this year but faces a further trial – his third – in early 2026.
Of course, some politicians are incorruptible. Maybe even most. But that’s not the point. A law that relies on the personal virtue of its wielders is bad law. A 2010 NSW Independent Commission Against Corruption (ICAC) report on Part 3A noted that “anyone who has discretion to grant development approval, to rezone or to depart from stated requirements … is at risk of corrupt approaches” and recommended such discretion.
Part 3A constituted a ministerial invitation to lunch. (Not for nothing was Macdonald dubbed “Sir Lunchalot.”) So notorious did this section become, and so loathed by the public, that the O’Farrell government was elected in 2011 on promises of repeal (it did this, but quickly replaced Part 3A with something else as bad). Since then, though, a combination of case-law and community pressure has contrived gradually to equip the system with a few more checks and balances. It’s far from perfect and certainly requires simplification. But it’s also clear that there’s already still far too much discretion – with categories like State Significant Development still giving the minister barely limited rubber-stamp powers – not too little.
The new bill undoes all those gains. “Part 3A on steroids” is how many describe it. The NSW ICAC has said that its advice to include measures against conflict-of-interest risks and “measurable assessment criteria” stands, but that it was “not asked to comment on the bill itself.” This spirit of exclusion reappears throughout the new act. The existing habit of asking advice from such agencies as the Environmental Protection Authority or the Heritage Office is gone, replaced by the single person that is the Development Coordination Authority (aka the secretary). Local government, already virtually shorn of planning powers, is further shut out with the new 10-day “deemed approval” clause for complying development.
And there are several measures designed to dissuade any consent authority – local or state – from considering a proposal’s broader or longer-term context. First, the act makes it unlawful for consent authorities to consider the impact of associated developments such as, for example, societal or environmental impacts of roads or pipelines essential to mining or fracking developments. These must not be considered.
It will also be unlawful for consent authorities to consider all likely impacts of a proposed development. Instead, only “significant” likely impacts can be considered. What is “significant”? Climate? Species extinction? Public health? That will be up to the minister, and, being undefinable, is likely to release an avalanche of litigation, rendering approvals not faster but slower. Further, reversing the current requirement for a consent authority to consider impacts such as environmental, heritage, social, economic and public interest, these heads of consideration are removed and placed in regulations. What this means is that whether they can be considered at all will be decided, absent parliamentary scrutiny, by the minister. If the development is declared by the minister to be a Targeted Assessment Development, these things must not be considered.
This means that certain recent refusals are almost certain to be reversed. The recent NSW Court of Appeal’s refusal to extend the Mount Pleasant coal mining license because of the climate impact of an extra 247 million tonnes of coal would likely be considered unlawful. Similarly, the court’s refusal last year of the massive proposed Bowdens lead, silver and zinc mine at Lue, near Mudgee – two kilometres from the local primary school – could also be reversed.
A cynic might be forgiven for taking this as deliberate on the government’s part. But that is not the propaganda. Rather, it is all about housing and supply – the subtext
being that all those nasty planners with their determination to consider the public interest have been bottlenecking development, driving prices skyward and undermining equality. Developers, meanwhile, far from revelling in higher prices, are selflessly devoted to cheaper housing.
As YIMBY Melbourne claimed earlier this year, over the last four decades, the number of practising planners in Australia has grown by almost nine times while the number of houses built per year has “plummeted” – “planner productivity has collapsed …” Planning, goes the implication, is not the solution but the problem. This dangerous narrative casts developers as humanity’s saving angels and planners as horrid little lucifers, doing their utmost to preserve the elites. But is any of this true? Or even likely to be effective? Or is the YIMBY push playing straight into developer hands?
Yes, the NSW Planning Act has become, over the years, abstruse, impenetrable and morbidly obese. Yes, we need affordable housing. But does anyone believe that the free market will drop prices, ever? Or that the public interest is best served by explicitly banning it from consideration? This absurdist comedy is a planning version of unleashing federal troops on home soil. Only one thing is certain: when even lawyers, normally circumspect, call new legislation “retrograde” and “concerning,” a second look is definitely warranted.
Footnotes
1. Independent Commission Against Corruption, “The Exercise of Discretion under
Part 3A of the Environmental Planning and Assessment Act 1979 and the State
Environmental Planning Policy (Major Development) 2005,” December 2010.