At the centre of a strong democracy is the ‘separation of powers.’ These are, firstly, the assembly of elected parliamentarians or councillors, secondly the ‘executive,’ that is, the government of the day, and, finally, the judiciary.

Elected members make the laws, the executive implements them, and the judiciary resolves disputes over interpretation of laws.

It is essential that these institutions do not encroach on each other’s domains.  We don’t want executive government intruding on the independence of the judiciary.  This can fatally undermine faith in the ‘umpire’s decision’ and therefore the stability of governance institutions more generally.

Far reaching negative consequences will also arise when the judiciary or unelected executives usurp the role of elected members in making policy and laws.  Unsurprisingly, electors will feel that their vote is meaningless.

The NSW’s Government’s proposed reforms to rezoning processes in that State threaten to cut across the principle of separation of powers.

‘Zoning’ or the package of land use controls and development standards applying to a piece of land is law.  Like all other law – traffic, tax, criminal etc. – its formulation is the exclusive province of democratically elected members of parliament or council.

In NSW, zoning is determined under the Environmental Planning and Assessment Act 1979.  Because local governments do not have separate constitutional recognition – they are creatures of the State – Councils make local zoning laws ‘under licence’ from State Government.  The State reserves the right to formulate zoning on matters of regional and NSW wide significance.  Moreover, it can intervene at any time in the formulation of zoning relating to purely local matters.

In any case, whether zoning is proposed by the State or Councils under licence, it represents the act of elected members, who will be accountable to their constituencies for these decisions.

A constantly promoted complaint of the development industry is that Councils routinely fail to keep their zoning schemes up to date and in line with their strategic planning objectives.  To the immense frustration of many development proponents, they must request the local Council to change the law attaching to land use and development standards for a particular site and have no legal recourse if the Council in its wisdom or lack of it, ignores the request or simply says ‘no.’

One, all too common, solution is for the proponent to lobby the State Government of the day to reach in and change the zoning law on their behalf.  This is fair enough if the project has regional or state-wide consequences.  But if it is a purely local matter, the State Government can expect a major political stoush as it seeks to override what ordinary people would see as the rightful democratic domain of the Council.

The upshot is that many potential worthwhile projects do not proceed because of inefficiencies or just the plain untidiness in the making of zoning laws.

A solution being contemplated by the NSW Government would give proponents a right to appeal to a judicial body if they get a re-zoning knock back or inaction from the Council in question.

This approach, flagged in ‘A new approach to rezonings’ paper released by the Government in December 2021, would go much  further than the current review options available to frustrated proponents.  Under existing arrangements,  administrative reviews of rezoning proposals which are not embraced by Councils involve referrals to expert bodies, including District Planning Panels or the Independent Planning Commission. While these bodies bring a technical focus at ‘arm’s length’ from government, they operate under the auspices of executive government.

Going further to allow appeals to a judicial body on matters of policy formulation would transgress the separation of powers.  Unelected officials or judges would be called upon to make laws that will be imposed upon local communities without those communities sanctioning the laws in question.  The communities might be consulted in the process, but they do not retain ultimate democratic authority for the decision.

This would undoubtedly undermine faith in the planning system.  In the end, the system would become an even tougher battleground for proponents.

To preserve the separation of powers, a proponent appeal on rezoning should, in the first instance, be approved by the Minister responsible for the Environmental Planning and Assessment Act.  The Minister can then choose to act on the advice of an independent body convened to hear the merits of the case.  This would keep law making within the province of elected members.

It would also expose the Minister of the day to local political scrutiny of their decision.  That’s how it should be.

Making the existing system work better is the way to go, rather than striking at the heart of a fundamental principle of democracy.

by Marcus Spiller and Marko Rubcic

Dr Marcus Spiller

Dr Marcus Spiller is a Principal and Partner of SGS Economics & Planning Pty Ltd, a firm which he helped to establish almost three decades ago.

Formally qualified in commerce and urban planning, Marcus has practiced as a consultant for much of his career, though he has also worked as an academic, local government town planner, Ministerial Adviser and senior bureaucrat in State and Commonwealth Government agencies.

Marcus is widely published in regional economic development, housing policy, infrastructure funding and metropolitan governance. This includes writing and co-editing two books on urban management. He is an honorary Associate Professor at the University of Melbourne and a Life Fellow of the Planning Institute of Australia.

Marko Rubic

Marko is a Senior Consultant and project manager at SGS based in the Sydney office. Marko is a strategic planner with expertise in land use planning, cost-benefit analysis, infrastructure planning, development feasibility, retail planning and stakeholder engagement.

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