In planning, who represents the public interest?

Whilst we haven't seen anything official from the state government on where residential density will occur in the Illawarra-Shoalhaven, there is a clear message that traditional residential areas near train stations will be a priority to provide greater housing type and tenure. From an Illawarra perspective this is likely to occur at those rail stations along the Illawarra rail line, directly north and south of Wollongong station.

I can assure you that the state government's plans will irk those that are willing to block any such move. This will likely lead to further NIMBY groups taking their chance to grandstand the situation on the eve of the local government elections to again influence the decision-making process from the perspective that they know what's best for the public.

Let's look at "what's best for the public", which is captured under the term "the public interest" and listed as a key assessment matter in Section 4.15 Evaluation of the NSW Environmental Planning and Assessment Act 1979. Interestingly the EP&A Act does not define the "the public interest", neither is it defined under Australian law. Rather interpretation is varied, and it is broadly captured under other legal guidelines, and associations which state:

"The public interest is a concept that refers to the common good or general welfare of the community or society. It is often used in legal contexts to balance competing rights or interests. In Australian law, there is no clear definition of the public interest."

With that aside, a more serious assessment of the planning process is needed, one which looks firstly at the role of single-issue (no development) groups and their influence over elected representatives and planning professionals. This typically occurs during the development application stage and the need for a council to assess the "public interest" criteria. It really begs the question "who best represents the public interest?".

A key objective of EP&A Act is to provide increased community participation in environmental planning and assessment. The Act contains various regulations that ensure each development proposal, other than exempt and complying development, or development of minimal environmental impact, must go through a public exhibition phase. Some applicants will even go beyond the regulatory requirements and engage more deeply with the affected community or adjoining neighbours and bring them along as part of a project's evolution from concept to outcome.

However, for some applicants no matter how hard they try to consult and engage, the NIMBY groups will never listen, claiming that no matter how small their numbers are, they know what's best for a development proposal and what it should contain.

This is where the public interest influence comes in and who knows best. Is the public interest best represented by the developer who has tested the market and knows what will work on a site? Or is it the planning professional who has read countless demographic, social, traffic, economic and environmental studies? Or is it the elected official who has been publicly elected and can speak for all parties. And let's not forget the state government and their influence over the public interest.

You would clearly have to say all three, but it is planning professional and elected official who are most affected by the NIMBY groups who claim they represent the public interest because they know best because they live in the area. It is under this predicament when development gets blocked and sometimes significantly changed.

Let's look at the geographic confines of the public interest and how far does it extend. Is it more relevant to the street, suburb, state, or national context? And again, who is the best to decide this? If one suburb has no aged care but an adjoining suburb does, who is the public interest for, when a new aged care development is proposed in the suburb where no aged care housing options exist. Again, there are no clear guidelines covering geographical spread. At the same time, if 50 people in an area of 20,000 people object loudly, should their views be dismissed due to the poor percentage representation. Is their view representing the greater good?

The public interest gets super blurry when a major crisis beholds us and you did see this play out with the COVID pandemic.

We clearly have a housing crisis in the Illawarra and now is the opportunity to again test the public interest, and how well it is being applied. Our 2023 Key Worker Housing Report with Business Illawarra, put the responsibility on councils, community housing associations and developers to do their bit. But I am calling on those NIMBY groups to play their part in this response and to embrace what needs to be done, to get us through this next phase so we can properly deal with this housing affordability and rental crisis facing Illawarra.