There it was, tucked away right down the bottom of the ACT Government’s umpteenth proposed revision of the planning system. You know, the one that embraces all the buzz words: “certainty”, “efficiency”, “residential amenity”, “sustainable development”, “environmentally friendly”, “stakeholder input”, “transparency” etc.
Just above the clause about rights to extract minerals – critically important for the vastly expanding ACT mining industry – is Clause 372 of the new blueprint for ACT planning, the Planning and Development Bill 2006.
It is a clause which says that anyone applying for, or objecting to, a planning application may ask that all or part of their application be excluded from the normal rule requiring publication and that the “planning and land authority may approve or refuse to approve the exclusion application”.
Utter unfettered discretion. No requirement for the authority to publish reasons, or to act upon given criteria – just an open-ended discretion to hide from the public any document about any planning application.
The only requirement is that the authority MUST give secrecy in case of trade secrets or likelihood of harm to life and property. That bit, I suspect, is only there to cloak the general discretion with respectability. It is a clever piece of drafting which suggests that this clause is only about the planning authority giving secrecy in cases of harm to life and property.
But the real import of the words is far wider.
The onus is the wrong way around. The whole planning process should be in public. The planning authority should only have the power to grant secrecy if there is a shown threat to life, property or commercial secret, and then only in the public interest.
This is one of a creeping number of legislative proposals and enactments which allow bureaucrats and courts huge discretion to grant secrecy.
The planning authority should not have a general discretion to grant secrecy. If you are proposing a development you should do it in public. If you oppose a development you should do it in public.
The reason is obvious. Planning permission often lies in the hands of a few top bureaucrats and politicians. It is an awesome power. In one swoop it can make some agricultural dustbowl worth a million dollars a hectare rather than a few thousand.
In Australia, land is abundant and not worth much. There are squillions of hectares of it. What is valuable is not the land, but the right to use the land for a lucrative purpose: for agriculture with water rights rather than agriculture with mere rain; for residential development rather than agriculture; for offices rather than residential; for light industrial rather than offices; for bulky goods rather than light industrial; and for retail rather than bulky goods.
The earth on its own is virtually worthless.
Planning approval is about the last bastion of governmental prohibition on activity – prohibition on building. And whenever there is a government prohibition, black markets and corruption surely follow. It was true in the bad old days days of prohibited gambling and prostitution (ad in the US, booze).
Whenever it has been within the purvey of a Minister advised by bureaucrats to say yea or nay to development the temptation to proffer or accept loot follows.
In the ACT it seems that we have been mercifully spared development corruption, though one can never really know. I think one of the reasons for this is that Canberra has had a number of publicly spirited people who have acted publicly as guard dogs. We have also had a number of commercial interests who have been de-facto guard dogs willing to blow the whistle on commercial opponents, even if for purely self-interest.
The recent Epicentre debacle shows the utmost importance of keeping everything public.
Before the auction, the Land Development Agency promoted the site in the industrial, residential-free suburb of Fyshwick as a bulky goods outlet to a short-listed group of bidders. Before the auction, the agency got two valuations: one for $13.5 million and another for $11 million.
At the auction, Austexx successfully bid $39 million – three times the valuation.
Apparently, Austexx went to the ACT Planning and Land Authority and found out that planning rules would allow small retail outlets on the site, not just large outlets for bulky goods. With that land use, the site was worth about $100 million. What a bargain.
Whatever his sour grapes, airport owner Terry Snow, who was an unsuccessful bidder, was quite right to assert that something had gone badly wrong and that all parties to the auction should have been given the same knowledge.
Long-suffering ACT ratepayers might wonder why their Government did not either ensure the site was for bulky goods only or, if it intended it for retail, why it did not shout that from the rooftops to the likes of Westfield and QIC to maximise the return for the site.
Everyone is now running for cover. We have had secret hearings in the Assembly and secrecy orders over the valuations.
The lesson is clear: secrecy makes for bad planning and suspicion of bad play. Openness inspires confidence.
And as an aside, can we stop misusing the words “transparency” and “stakeholders”?
This pernicious proposal to allow the planning authority to grant secrecy is so transparent I can see right through it. And I have an interest in the good planning of this city, so I am not a stakeholder. A stakeholder is an independent party who holds other people’s interests (usually a deposit on land) until settlement of the issue. Stakeholders are precisely the opposite of people who have an interest in an issue.
In any event, I suspect Epicentre was a cock-up rather than a conspiracy: a cock-up that cost the ACT taxpayers about $60 million. Planning Minister Simon Corbell should release all the documents in the matter and with that lesson in mind, in his own best interests, he should redraft the dreadful secrecy provision in the proposed legislative base for his umpteenth new planning regime.