3 November 2008

RELATED expertise

The two week post-election political stalemate in Canberra has ended with the announcement that the Greens will support the Labor Party’s Jon Stanhope as Chief Minister of the ACT. The Greens have decided not to take up any Ministerial portfolios. Instead the focus of the Greens has been on establishing an agreed Agenda for Parliamentary Reform and a Policy Programme with the Labor Party, representing their vision and their demands for the future governance of the ACT.

What does this union of the previous Labor incumbents, and of the new political force constituted by the Greens, mean for property development in the ACT?

What have the two parties agreed?           

The price of the Greens’ support for Labor is detailed in a 16 page Parliamentary Agreement between the two parties. The Greens guarantee to support Stanhope as Chief Minister, to pass Appropriation Bills (ie to ensure that money flows for government programs), and not to support any no-confidence motions against the Chief Minister. The Greens have asked that their MLAs be appointed Chairs of the Public Accounts; Health Community and Social Services; and Climate Change, Environment and Water Committees. Also, a new Committee, to be called the Committee on the Ecological Carrying Capacity of the ACT and region, is to be established.

Appendices to the Agreement set out the Agenda for Parliamentary Reform and a Policy Programme, which list the key reforms and policies that the two parties will pursue in the term of the seventh Legislative Assembly.

Share the love - the Green's new, collaborative, approach to governance                 

The declared intention of the Reform Agenda is to ensure the accountability of the Executive to the Legislative Assembly. There will be greatly increased demands on the Executive to provide full disclosure of policy and legislative development, and of “service delivery” to the public. A key feature of this will be a new “collaborative” role for Committees. The Greens insist that Committees must meet at regular intervals with Ministers and officials to be briefed on the activities of the portfolio concerned. As well as that, another level of collaboration is to be installed, between Committee Chairs and Ministers, for more detailed discussions and consultation on portfolio activities.

Bikes, bags and buses for a greener, cleaner Canberra                  

The Policy Programme lists out the policy goals the Greens wish to pursue in partnership with the Labor Party. Three areas of commercial interest stand out.

As one would expect from the Greens, the dominant theme of the Programme is the environment. A greenhouse gas reduction target for the ACT is to be legislated. An EOI for a 10,000 home renewable energy power plant is to be issued. All houses will get an “energy efficiency makeover”. Passive solar orientation for new homes is to become law. Plumbers will be sent out to government and low income households to fix leaks. Storm water drains will be replaced by wetland systems. A plastic bag levy will be introduced for a trial period almost immediately.

The second commercial focus area for the Greens is transport. The expenditure on bicycle infrastructure is to be substantially increased, including new Bike and Ride (and Park and Ride) facilities at bus stations. The Greens want to see a bus pull into every bus stop every 30 minutes. The Greens want to can the National Capital Plan proposal for Monash Drive, an arterial road that would affect bushland behind four inner north suburbs. Consultations with taxi drivers and commercial transport operators will begin, with the goal of implementing more “demand-responsive” transport.

Lastly, in terms of planning policy, the Greens have carried through with their promise to re-introduce neighbourhood planning processes. A goal of 10% public housing is to be pursued, and more money will be spent to purchase public housing. A “small business impact statement” will be required by ACTPLA for large new commercial developments.

How will planning and property development fare under the new policies               

The Greens’ policy commitment to the “bush capital” character of Canberra, to neighbourhood planning processes, and to small business EISs, will be likely to lead to development bottlenecks and to delays in approval processes. Introducing a new layer of approvals, even if only consultative, will undo some of the re-engineering of the planning system which was undertaken by the Labor Government in its last term of government. The goal of a “faster, simpler and more effective planning system” might prove more elusive.

The Greens’ policy statements indicate a preference for new development around town, regional and neighbourhood centres. The Greens also oppose corridor infill and unchecked “greenfields” subdivisions. Land release and urban infill plans may stutter as the Greens attempt to reconcile the contradictions between a policy which appears to promote higher density development in city areas, but which at the same time is strong on city amenity and which promotes more public consultation. The Greens’ desire for an inquiry to be held into the ecological carrying capacity of the ACT and region also sends a mixed message about the development policy position of the Greens.

Big projects - pause or progress?                   

The recent attempts by the Stanhope Government to facilitate the establishment of a data centre and gas-fired power station at Tuggeranong was a policy gaffe that seriously damaged voter support for Labor at the last election. That issue, together with controversies about the Gungahlin Drive Expressway and school closures, had a major impact on voting trends. Public apprehension about planning secrecy was inflamed by both the Liberal Party and the Greens in the lead up to the vote. The policy response is now clear: there is to be much greater disclosure and intrusion into the business of government.

In relation to the data/power station, the stance the Greens have adopted has been quite measured and responsible. Business should not be too quick to label the Greens as “anti-development”. The position of the Greens has been that if the EIS is satisfactory, then a matching site should be identified for the development to proceed, but that the site should not be close to suburban areas which would be affected by the project in terms of air quality or visual amenity. The Greens continue to show support for power and data storage projects in the Policy Programme.

The Greens and the Labor Party will need to reconcile their views on the expansion of Canberra Airport. The Policy Programme calls for an independent review of aircraft noise. In their previous pronouncements the Greens have expressed strong concerns about the “unconstrained development” that has been allowed at the airport, which it refers to as a “massive retail, office and eventually residential development”. The Greens complain that the airport’s Master Plan does not link to a sustainable transport plan for the ACT, and that there is no greenhouse gas impact analysis of the expanding activities taking place at the airport. The Labor Party pledge is quite simple: to support the development of Canberra International Airport.

Getting things done at the administrative level                

Big projects require the active interest and even the patronage of the various administrative entities and agencies that will be affected by the project concerned, or whose approvals are needed to bring the project to life. That is not a subversion of the planning system, nor does it conflict with the transparency and objectivity required for the assessment of development applications and the granting of approvals under the Territory Plan. Getting a proposal into the door of ACTPLA, and then complying with any number of development conditions accompanying an approval, requires cooperation and understanding between Ministers, bureaucrats and developers.

Today’s urban development projects are very different to those of the past. Previously the Government had large areas of land available, in close proximity to existing buildings in city and town centres. This land was amenable to new uses and to public sale by auction. Now, land is at a premium. Expansion of retail and commercial facilities takes place “at the margin” of existing private landholdings, both at ground level and above (airspace). Community facilities within private property have to be provided for, and public rights on and through private property need to be recognised. There is now a greater need for cooperation with the private sector, negotiation with the government, and the utilisation of direct grant mechanisms.

The increased scrutiny of the Executive under the Reform Agenda may jeopardise complicated projects, and projects involving “investment capture” (where the ACT is in competition with other jurisdictions). In some cases information control is an important aspect of a successful outcome, as well as being in the community interest. Will the Labor Party and the Greens be able to agree on the public benefit of any particular major development, at an early stage, and then cooperate in instructing their administrators to facilitate the project? It should also be noted that membership of the Committees to which the Executive must give full disclosure includes Liberal Party MLAs as well. Will “tripartisanship” emerge on major development initiatives?

Concluding comments            

In overall terms, there is a greater homogeneity between the Labor Party and the Greens in ACT politics than there is between the Liberal Party and the Greens. The support of the Greens for the formation of government by the Labor Party is therefore not surprising.

In order to work with the new Government, business will need to discard its stereotypical view that the Greens are environmentally obsessed and anti-development. The Greens “in power” will have to respond entirely differently to economic and social needs than the Greens “in opposition”.

However securing a development consensus will also involve some compromise on the part of the Greens. The responsibility that has given to them to make decisions on behalf of the electorate cannot be discharged by giving those decisions back to the electorate, through endless consultation, or by ceding them to the Labor Party and afterwards denying responsibility. Some might interpret the fact that the Greens have not taken up any Ministerial positions as indicating an “all care, no responsibility” position on their part.

In the early days of this term the Greens are likely to struggle with the need to set a path for economic progress, and to support decisions which have long-lasting benefits for the community. If they succeed in making this transition, the property industry will get the certainty it requires, even if the rules are a little different. But if the Greens do not succeed, the machinery of government will become congested, and investment in the ACT will suffer in a commensurate way.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2008