Year

2012

Degree Name

Masters by Research

Department

Faculty of Law

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.

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