University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2012 Participation: a voice crying in the wilderness Grant Norman Gleeson University of Wollongong Recommended Citation Gleeson, Grant Norman, Participation: a voice crying in the wilderness, Masters by Research thesis, Faculty of Law, University of Wollongong, 2012. http://ro.uow.edu.au/theses/3518 Research Online is the open access institutional repository for the University of Wollongong. For further information contact Manager Repository Services: [email protected]. Participation: A Voice Crying in the Wilderness Is it time to repeal s5(c) of the Environmental Planning & Assessment Act (NSW) 1979? If there is no meaningful role for public involvement and participation in the decision-making and decision-review mechanisms in the EP&A Act, then the reform process should be taken to it logical conclusion by the repeal of s5(c). A Thesis submitted in fulfilment of the requirements for the award of the degree MASTERS BY RESEARCH From UNIVERSITY OF WOLLONGONG By GRANT NORMAN GLEESON BA LLB FACULTY OF LAW MAY 2012 ABSTRACT In the 1980s Patrick McAuslan identified the three grundnorm ideologies of land use planning namely: the ideology of Private Property; of the Public Interest and of Public Participation. From at least ancient Roman times until very recently the ideology of private property governed land use transactions. Whilst building regulation has a long historical tradition, formal land use planning laws were not enacted until the early twentieth century. With the advent of such laws the ideology of public interest dominated land use policy until the 1980s when it was challenged by the neo-liberal movement. Since that time there has been an ideological power struggle between the protagonists. The guardians of the ideology of public interest have railed against the neo-liberal agenda to ‘devalue’ the institution of planning in seeking to reduce it to being a mere siphon for development. The guardians of the ideology of private property, in turn, have disparaged calls for greater state intervention questioning whether there is any case for government intervention given that cities are such complex social systems. It seems that as society moves beyond the neo-liberal paradigm in land use planning in search of a new explanatory theory to guide its way the very notion of planning is being questioned. Yet, in this debate the function of public participation has been largely ignored; it has been an island in the flux of power. The ideology of public participation remains the untried path in land use planning. In March 2011, the New South Wales opposition political party went to an election and won government with a policy to reform the land use planning system pledging to empower the people by returning ‘planning controls to local residents’ through their councils. Empowerment is emblematic of democratic principles. But to implement democratic processes in land use planning decision-making would require the government to depart from McAuslan’s ideology of public interest and to embrace the ideology of public participation. It is argued in this research that to change the status quo the government must overturn one hundred years of planning law history. It requires the enactment of legislative mechanisms that elevate the voice of the people to the status of power. The purpose of this research is to consider the nature and role of public participation in the land use planning system of NSW. The research undertakes a synoptic traverse of the historical narrative relying on an array of secondary sources to understand the dynamic of participation in the context of Patrick McAuslan’s land use planning ideologies. Presently, s5(c) of the Environmental Planning and Assessment Act 1979 (NSW) elevates participation to the status of an objective of the Act; but the mechanism by which the objective is to be attained is absent in the Act. By framing the thesis as a call to repeal the provision places the government’s dilemma into sharp relief. The conclusion of the research is that despite the call to reform the NSW land use planning system creating an opportunity for planning to become more participatory and democratic, it is unlikely that any reform will actually achieve that end. If that conclusion is correct, then s5(c) should be repealed. If participation remains and objective of any new planning legislation without an effective legislative mechanism it will only lead to a perpetuation of the confusion and disarray that presently exists in the land use planning system. ACKNOWLEDGMENTS The journey to this point has been via a winding road with some detours along the way. It has demonstrated why short cuts make for long delays, as Pippin says in Tolkien’s Lord of the Rings . So first and foremost I acknowledge the support and encouragement of my wife Kathleen and of my daughters Eileen and Meredith. They have been my inspiration and spur to see this journey through to its conclusion. I am not sure what I have been to them along the way (apart from distracted by this effort) but I hope that in realising this goal I have shown a way forward. I wish to especially acknowledge the support, guidance and counsel afforded me by my supervisor Professor Andrew Kelly. I have been fortunate to draw upon the well of Andrew’s intellect and knowledge of the area of local government. His enthusiasm for my project has been unstinting over the years. I also wish to recognise the contribution of the Dean of the Faculty of Law at Wollongong University, Professor Luke McNamara. It was an inspired comment in the preliminary course that gave me the insight for frame the thesis thus enabling me to focus my energies in a useful fashion. Part time study is a hindrance to full-time employment. I accordingly wish to acknowledge the generous support of my firm and practice comrades who have tolerated this diversion from the matters at hand. As always, without their forbearance, this work would not have been possible. Thesis Certification I GRANT NORMAN GLEESON declare that this thesis, submitted in fulfilment of the requirements for the degree Masters by Research, in the Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Grant Norman Gleeson Dated: May 2012 TABLE OF CONTENTS Participation: A Voice Crying in the Wilderness...........................................................i Is it time to repeal s5(c) of the Environmental Planning & Assessment Act (NSW) 1979? If there is no meaningful role for public involvement and participation in the decision-making and decision-review mechanisms in the EP&A Act, then the reform process should be taken to it logical conclusion by the repeal of s5(c). ........i ABSTRACT......................................................................................................................ii ACKNOWLEDGMENTS ...............................................................................................iv TABLE OF CONTENTS.................................................................................................vi LIST OF FIGURES ..........................................................................................................x Chapter 1: Introduction .....................................................................................................1 1.1 Introduction.......................................................................................................1 1.2 Aim of the Research..........................................................................................3 1.2.1 Planning Ideologies...................................................................................5 1.2.2 Participation and Democratic Theory .......................................................8 1.3 Theoretical Framework...................................................................................12 1.4 Structure of the Research ................................................................................15 Chapter 2: The Nature of Planning Today................................................................17 2.1 Introduction:....................................................................................................17 2.2 What is Land Use Planning?...........................................................................18 2.3 What is the Purpose of Participation?.............................................................25 2.3.1 Ideological Conflict:...............................................................................26 2.3.2 What is Participation?.............................................................................29 2.3.3 The Semantics of Participation ...............................................................32 2.4 Planning Law: The Power to Control .............................................................33 2.5 What should the role of public participation be? ............................................36 2.5.1 Participation as Consumer.......................................................................37 2.5.2 Self-Interested Participation....................................................................38 2.5.3 Public Participation as ideology..............................................................40 2.5.4 Participation to create an umwelt ............................................................41